“Transitions from authoritarian rule or conflict pose a huge challenge, but also present important opportunities from both a rule of law and a broader development viewpoint.” says Rhodri Williams, ILAC Senior Legal Expert.
For rule of law practitioners, these are the best of times and the worst of times.
On the positive side, the Sustainable Development Goals (SDGs) adopted by the UN in August 2015 firmly endorsed rule of law as a precondition for development. Moreover, by referencing both “equal access to justice for all” and strengthened, accountable national institutions, SDG 16 reconciles both bottom-up and top-down approaches to rule of law as mutually supportive and necessary.
For organisations like ILAC that are geared to promoting rule of law reform by consulting with civil society and partnering with formal institutions, these are welcome developments. However, even as the necessity of engaging with formal institutions has been affirmed, the challenges of such work have rarely been clearer than they are now.
Rule of law institutions, and particularly judiciaries, tend to be resistant to change. As seen in ILAC’s work in the MENA region, this has in some cases helped such institutions to survive prolonged periods of authoritarianism with a relatively high degree of integrity. For instance, ILAC’s 2013 rule of law assessment in Libya found that the Libyan judicial system suffered from both legitimacy and capacity deficits but was nevertheless one of the only institutions that survived former dictator Muammar Gaddafi’s four decade reign, providing some continuity with earlier traditions.
However, the tendency of rule of law institutions to resist change also presents profound challenges when such institutions have little rule of law tradition, or were even set up to serve authoritarian systems of rule. In a recent interview, Basil Fernando of the Asian Human Rights Commission noted that many contemporary Asian justice systems survive virtually unchanged from earlier colonial periods when they were designed to oppress local populations. In this sense, piecemeal reforms may be counterproductive in the absence of a commitment by national decision-makers to transform the justice system, re-wiring it to serve ordinary citizens.
This is where the importance of the transitional justice discourse comes in. The intimate relationship between transitional justice and rule of law was recognized over a decade ago in a seminal report by then-UN Secretary General Kofi Annan. Transitions from authoritarian rule or conflict circumstances pose a huge challenge, but also present important opportunities from both a rule of law and a broader development viewpoint. In cases in which the breakdown of political and legal systems have contributed to mass human rights violations, it is impossible to avoid the conclusion that such systems must be fundamentally reformed to prevent the recurrence of atrocities.
Moreover, as the UN Special Rapporteur addressing transitional justice issues, Pablo de Greiff has noted, even in cases where political actors are reluctant to undertake significant reform, the language of human rights and transitional justice gives civil society actors a vocabulary and framework for demanding such changes. In a 2012 report on transitional justice and the rule of law, de Greiff pointed out that:
[Transitional justice] measures rest upon but also strengthen regimes of rights where it is understood that individuals are rights-bearers and that they can organise themselves in order to raise claims against one another, and crucially, against the institutions of the State. In this way, transitional justice contributes to the overcoming of conditions under which persons are mere supplicants, dependent on the will or grace of the authorities. They become claimants of rights and participants in the processes by which the content, application and strength of the law are defined.
Earlier this month, ILAC was pleased to be able to support a lunch seminar of the Stockholm Transitional Justice Network (STJN) convened by the Swedish Foundation for Human Rights, at which Mr. de Greiff presented his most recent report (available here in pdf form). The report focused on “guarantees of non-recurrence”, or means to prevent the repetition of mass human rights violations in settings where they have already occurred.
The discussion (summarised here in a recap by the Swedish Human Rights Foundation) focused on three complementary types of mechanisms that can serve the aim of prevention. These included more conventional state-centric measures involving reform of official institutions, along with efforts by civil society and interventions “in the sphere of culture and personal dispositions”.
For ILAC, the central importance given to judicial reform as an official prevention response in Mr. de Greiff’s report is very encouraging, along with the emphasis not only on vetting judicial personnel but also on promoting genuine independence for judges and building their capacity to effectively investigate and prosecute the type of “structure crimes” involving numerous actors and networks that frequently result in mass abuses.
However, the emphasis in Mr. de Greiff’s report on non-state interventions related to legal empowerment is equally significant, given the unlikelihood that official reforms will be sustainable without pressure and engagement from an informed and dynamic civil society. Similarly, the third set of recommendations in the report related to culture and attitude resonate strongly with ILAC’s insights on judicial reform. Put simply, change in institutions must be supported from above but can only be implemented from below, as individual professionals test the attitudes and assumptions that shape their role in society and develop the confidence to promote positive change.
Given the need to engage with numerous fields of expertise concerned with transitional settings in order to develop an effective framework for prevention policies, Mr. de Greiff is currently working with the Government of Sweden to set up an expert platform for discussion and exchange of ideas. ILAC looks forward to contributing this process based on its own insights and the rich experience of its member organisations.
Rhodri C. Williams
Senior Legal Expert