Rami states, "In this scenario, the 'rule of law' is observed or claimed to remain operational at some level throughout the conflict or emergency. Certain core legal institutions continue to exist and function; there is a judiciary, a written law that is more or less upheld, legal personnel are appointed and hold office, detainees including rebels may even be tried in court and sometimes acquitted. However, the rule of law adhered to is, at best, a minimalist rule of law. While minimal principles of legality are not transgressed, the law itself is iniquitous, and bad or unjust law is passed and enacted."8 An example of this scenario is apartheid South Africa.
According to Rami, "In this scenario, some of the features of minimalist rule of law are maintained. A judiciary and legal system exist in name throughout the conflict; the Justice Ministry and Supreme Court exercise their functions. The problem is not primarily illegitimacy, as above. Rather, the rule of law is progressively emasculated over time. Its structure and façade remain, but the rule of law loses most of its defining characteristics and principles. . .The most significant failing is the judiciary's loss of independence and impartiality, as it is manipulated by the executive branch of government and, often, the military."9 Examples of this scenario are El Salvador and Mozambique.
In this scenario, "the entire legal apparatus of a society collapses. The rule of law disintegrates, and slips from dysfunctional to non-functional. Sometimes vestiges of prior justice systems remain: courthouses emptied of legal codes and furniture, or divested of qualified lawyers and judges; justice ministers and ministry buildings with little or no staff. Only a 'phantom' rule of law remains."10 Examples include Rwanda, Burundi, Sierra Leone, Liberia, Timor-Leste, Haiti, and Cambodia.
In the short term (which can be defined as the "crisis management phase"), the objective is to fill what many outsiders would define as the "rule of law vacuum" (restore basic security and stability).12 This can be associated with "negative peace" (that is, the absence of armed conflict).
In the medium and long term (which can be defined as the "development phase" and is actually supposed to be initiated in the crisis phase), the objective is to conduct a sustainable judicial and legal reform (with a specific emphasis on capacity building and local ownership) and to establish well-functioning and legitimate justice institutions.13 This can be associated with "positive/sustainable peace" (that is, the presence of social, political, and economic conditions that ensure a sustainable peace).
A predictable and efficient judicial and legal system is a precondition for economic growth, which is a critical component of peacebuilding.
"Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice. At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of restoration of the rule of law."
Source: Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 3, para. 2.
Human rights cannot be protected without a well-functioning justice system and laws that comply with international human rights standards and norms.
The building of judicial and legal systems is a core part of state-building strategies, and as such is important in ensuring domestic, as well as international, security and stability.
1. Kirsti Samuels, "Rule of Law Reform in Post-Conflict Countries: Operational Initiatives and Lessons Learnt," World Bank Social Development Paper No. 37 (October 2006), 15.
2. Practitioner Bill O'Neill notes, "I have always been struck by how people in Haiti, Rwanda, Kosovo, Sierra Leone, Liberia, Cambodia and elsewhere wracked by conflict and lacking the most basic of human necessities--food, housing, medical assistance, jobs--often said that their most urgent priority was justice. This reflects a universal yearning: to have clear rules that apply equitably to all with avenues of redress when the rules are broken. These people know better than most how literally 'deadly' the world becomes when rule by force usurps the rule of law." William G. O'Neill, "UN Peacekeeping Operations and Rule of Law Programs," in Civil War and the Rule of Law: Security, Development, Human Rights, ed. Agnes Hurwitz, with Reyko Huang (Boulder, CO: Lynne Rienner, 2008), 91.
3. Hansjorg Strohmeyer, "Collapse and Reconstruction of a Judicial System: The United Nation Mission in Kosovo and East Timor," American Journal of International Law 95 (2001): 50.
4. Ibid., 50; comment by Bill ONeill (June 2, 2008).
5. Charles Mironko and Ephrem Rurangwa, "Postgenocide Justice and Security Reform: Rwanda," in Constructing Justice and Security after War, ed.Charles T. Call (Washington, DC: United States Institute of Peace Press, 2007), 200.
6. Comment by Bill O'Neill (June 2, 2008).
7. Mani, Beyond Retribution, 73.
11. Samuels, "Rule of Law Reform in Post-Conflict Countries," 8.
12. "Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," UN Doc. S/2004/616 (August 23, 2004), 10, para. 27. For a critical view of what the "rule of law vacuum" means, see the introductory part of the Justice and Rule of Law section.
13. Ibid., summary, 4, para. 17.
14. Jane Stromseth, David Wippman, and Rosa Brooks. Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge University Press, 2006), 58-64.