COMPLEXITY OF CREATING LEGAL SYSTEMS AS PART OF
NEW YORK, 9 September (UN Headquarters) -- The complexity of creating legal systems as part of peace-building was underlined by speakers this afternoon as the Fifty-fifth Annual DPI/NGO Conference held a plenary panel on the subject of "Re-establishing the Rule of Law and Encouraging Good Governance" as part of its three-day session on the theme of rebuilding societies emerging from conflict.
The task of creating such systems was often so multidimensional that the title of the panel might not be appropriate, said Hans Corell, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. There was often no rule of law to re-establish. Numerous components that had to be created from scratch in post-conflict situations included not only rules governing civil society but also civilian police, a justice system and regulations concerning property.
Even though all such work was difficult, he said, it did not mean that the highest standards of the United Nations Charter should not be adhered to. In addition, local participation, a free press and accommodation of the local culture had to be ensured for the long-term sustainability of whatever systems of order were created.
All systems of government had collapsed in Rwanda after the genocide, said Gerald Gahima, the Procurer General of Rwanda. There was certainly no rule of law to re-establish there because none had existed. The genocide, in fact, was made possible by a culture of impunity for gross violations that had gone unpunished and were even rewarded by the successive Governments. The post-genocide Governments, therefore, decided to make the rule of law the cornerstone of administration, as it was the real foundation on which post-conflict reconstruction efforts rested.
For that purpose, he said, the justice system, which had been decimated by the genocide, had to be rebuilt, and new strategies to deal with the consequences of mass violence had to be established. However, justice was not enough to ensure and sustain good governance and the rule of law in post-conflict situations. Decentralization, human rights support and a transformation of policing and the legal system were among the many efforts pursued by the Government of Rwanda in that regard. He asked that the international community assist such national programmes rather than spending large amounts on international mechanisms such as the International Criminal Tribunal for Rwanda.
Françoise Bouchet-Saulnier, the Law and Research Director of Médicins sans frontières, said it was imperative to look at such countries in a historical and political context, bearing in mind that forces that caused war remained in play during periods of emergence from crisis. Impunity remained a driving force of war and needed to be addressed. However, countries emerging from war often did not prioritize the re-establishment of a judicial system. Impunity could only be "rolled back" once a population saw what it could lose; fighting impunity meant highlighting the human and social costs.
Priscilla Hayner, Programme Director of the International Center for Transitional Justice, agreed that, despite the overwhelming tasks at hand during transitional periods, efforts to address crimes through the courts should be vigorously pursued. The newly established International Criminal Court was expected to make a strong contribution to justice in those situations and serve as a model. As issues in transitional justice gained increasing attention, new challenges were being confronted, and ideas were emerging about how to confront them. In addition, in the "unsilencing" of the past, truth commissions could often make a break between the past and a future built on the rule of law.
There were many such perplexing mixture of political and legal issues in peace-building, said Danilo Türk, Assistant-Secretary-General for Political Affairs. Ad hoc tribunals, for example, could seem like judicial instruments, but for political analysts they often seemed like late substitutes for the prevention of atrocities. The political dimension to law in post-conflict situations also extended to the fact that there were often no absolute principles to follow; most matters were subject to negotiation. There did exist an art of success, however, in those endeavours, and it related to stimulating local capacity in all areas and avoiding an overly strong imposition of solutions by the international community.
In a question-and-answer exchange that followed the presentations of the panellists, responses were given to a range of questions on the issue of re-establishing the rule of law in post-conflict situations. The role of national versus international institutions, the importance of local actors and the handling of children as victims and perpetrators in conflict situations were some of the issues explored in the exchange. In addition, the role of non-governmental organizations as accomplices or passive witnesses to impunity was discussed, as was the role of the International Criminal Court in staving off the breakdown of law in conflict situations.
The next meeting of the DPI/NGO Conference will take place at 10 a.m. tomorrow, with a panel on the topic "Restoring Social Services: Identifying Priorities".
The Fifty-fifth Annual DPI/NGO Conference resumed its session this afternoon with a panel discussion, entitled "Re-establishing the Rule of Law and Encouraging Good Governance". The overall theme of this year's Conference is "Rebuilding Societies Emerging from Conflict: A Shared Responsibility."
HANS CORELL, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, introduced the panellists and said that peace-building was a new experience for the Organization, including building governance in certain operations. International standards of good governance, as included in the Charter, formed the basis for those activities. The title of the panel may not be appropriate because there might be, in many situations, no rule of law to re-establish. But that did not mean that the highest standards of the Charter should not be adhered to.
In situations of building governance, he said, there were numerous components. Civil Police must be established for law and order and a working judicial system must be applied. In both areas, there might be complete vacuums, and international assistance might, therefore, be required. Civil services might also have to be created from scratch, as might a military, which might have to perform functions related to the maintenance of law and order.
Many other systems must be created, he said, including ways of registering private property, the concept of which might vary according to the culture. Irrespective of which procedures were developed in all those areas, people from the local community must be found to participate, and the development of an independent media was crucial. All that formed the complex background against which the current panel discussion took place, he said, and he then introduced the first speaker.
Statements by Panellists
FRANÇOISE BOUCHET-SAULNIER, Law and Research Director, Médicins sans frontières, said that emergence from conflicts could last for years, and conflicts could resume after the presence of the international community had disappeared. It was imperative to look at countries in a historical and political context that bore in mind that the forces of war remained during periods of emergence from crises. Médicins sans frontières remained in countries even where peace had been established, such as in Afghanistan.
She highlighted some key lessons, beginning with the marginalization of victims of war. Following a conflict and a change in power, a civilian population that had been politically and economically marginalized was left traumatized. After the agreements were signed, certain euphoria and political opening prevailed, which, while positive, often ignored civilians’ plight. In Rwanda, for example, the recent victims of genocide had suffered severe physical, psychological and financial loss. In Angola, inadequate attention had been given to the civilians now emerging from the zones controlled by the National Union for the Total Independence of Angola (UNITA).
Of equal importance was the issue of impunity and a return to the rule of law, she said. Indeed, impunity remained a driving force of peace; that would change with the establishment of the International Criminal Court (ICC). The lack of a criminal court had been justified by financial inadequacies. That had underscored the need to establish priorities, especially since a country emerging from war had not usually had as its priority the re-establishment of the judicial system. Often, there was no budget to do so. Thus, the victims remained in a very difficult situation, with their attackers free to engage in acts of vengeance. Impunity could only be "rolled back" once a population saw what it could lose. So, societies were rebuilt on minimal control. Fighting impunity meant highlighting the human and social costs.
GERALD GAHIMA, the Procureur General of Rwanda, said the expression "re-establishing the rule of law" was actually misleading as far as his country and some others were concerned, because there could not be an establishment of such rule where none had existed. He recounted his country’s history leading up to the 1994 genocide as a case in point. That genocide was made possible by a culture of impunity for gross violations that had gone unpunished and were even rewarded by the successive Governments. The post-genocide Governments, therefore, decided to make the rule of law the cornerstone of administration, as it was the real foundation on which post-conflict reconstruction efforts rested.
The success of national building in the aftermath of conflict, he said, depended also on the extent to which efforts at national reconciliation had worked. But at the same time, justice was a prerequisite for reconciliation; the starting point for addressing impunity was bringing perpetrators to justice. That justice, in Rwanda, could come about neither through amnesty nor strict application of the law as it existed before 1994, and specialized chambers within existing courts were created to deal exclusively with genocide and related cases. For that, the justice system, which had been decimated by the genocide, had to be rebuilt.
As there were over 150,000 people arrested for crimes in the genocide and they were languishing in prison for long periods without trial, he said, another system had to be developed. The justice system was never designed or intended to deal with mass violence. Therefore, so-called Gacaca tribunals -- inspired by traditional forms of conflict resolution -- were developed, composed of persons of integrity from communities around Rwanda who would judge the bulk of the genocide caseload.
However, justice was not enough to ensure and sustain good governance in post-conflict situations, he said. Decentralization, human rights support, a transformation of policing and constitutional work were among the many national efforts needed. The international community had recently endeavoured to go beyond humanitarian assistance in post-conflict situations towards human rights and international criminal justice. However, in those endeavours international mechanisms should not be pursued at the expense of national programmes that held out better potential for promoting the rule of law, respect for human rights and good governance. The $100 million annual budget for the International Criminal Tribunal for Rwanda would be better spent in the wider efforts towards national reconciliation, good governance and justice that he had described.
In further recommendations, he urged a holistic approach to justice and post-conflict rebuilding, with an emphasis on national consensus and the concerns of victims. The international community, he said, needed to reassess a wide range of issues relating to its response to the aftermath of grave abuses.
PRISCILLA HAYNER, Programme Director, International Center for Transitional Justice, said that a look at the specific circumstances of a country emerging from conflict had made clear the task of establishing or re-establishing the rule of law following a nation’s dark period. Many wrongdoers still went unpunished. As the human rights field had been strengthened, however, the particular question of what to do during transition had gained increasing attention. A wide range of impressive initiatives had been put in place around the world that reflected the diversity of those challenges.
She said that growing field of how to confront justice and accountability challenges at the point of transition was generically referred to as "justice in transition". A number of mechanisms were available to respond to those challenges, which were often nationally driven and grounded in comparative national experiences. As the issues gained increasing attention, new challenges were being confronted and ideas were emerging about how to confront them. There was a clear link between efforts to establish accountability and establish or re-establish the rule of law for the future.
A weakened judiciary often accompanied rights abuses, she said. When courts functioned under fear or intimidation, or lack of resources and know-how, a weakened judiciary resulted. That, in turn, destroyed trust. Despite the overwhelming tasks at hand during transitional periods, efforts to address crimes through the courts should be vigorously pursued. The newly established International Criminal Court was expected to make a strong contribution to justice in those situations and serve as a model court. It should be asked what form of justice was due the victims of crimes, especially those who had suffered physical or economic loss. Justice for communities that had suffered or been destroyed should also be determined.
A truth commission had as its fundamental goal recognition of the nature and breadth of violations and shaping ways to prevent them, she said. Reforms were critical, but without a national capacity, an independent commission could address that. Truth commissions were gaining currency around the world, as their role was becoming better understood. Commissions took statements from victims and researched the causes and consequences of abuses. By undertaking those and more tasks, such a commission was in a position to recommend future actions. It was also in a position to inform the public and help define other kinds of justice mechanisms, such as reparations or trials. In the "unsilencing" of the past, a truth commission could make a break between the past and a future built on the rule of law.
DANILO TÜRK, Assistant-Secretary-General for Political Affairs, said that it was perplexing when political and legal issues were mixed together in peace-building discussions. There were conceptual, practical and political issues in which that confluence occurred. For example, ad hoc tribunals could seem like judicial instruments, but for political analysts often seemed like late substitutes for preventing atrocities.
In post-conflict situations, he said, there was also often a false dilemma made between retributive justice and restorative justice. There was often also an overly automatic connection between peace-building and nation-building. Efforts towards nation-building had to be critically assessed to assure local ownership and manageability. Security was a practical problem for post-conflict justice. Often such practical problems could determine the conceptual issues.
To achieve the goal of good governance, it was necessary to stimulate new forms of political dialogue within the society, he said, pointing to experience in Tajikistan. Laws also had to allow inter-ethnic balance. In that area as in others, there were no clear principles; everything had to be negotiated, and so it went beyond a pure legal situation to a political one. The art of success in governance was stimulating local capacity in all areas.
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Questions and Answers
In response to questions, Mr. GAHIMA referred to the International Criminal Tribunal for Rwanda, which had conducted five trials and handed down three guilty verdicts. It was the domestic institutions that really held the prospects for promoting the rule of law. Thus, that was where the bulk of resources should be directed. He supported United Nations mechanisms, but, ultimately, national institutions mattered more.
Ms. BOUCHET-SAULNIER, replying to another question, said that in Kosovo, after the conflict, Médecins sans frontières had quickly withdrawn its teams because an enormous amount of aid investment was flowing into the country, and there were a lot of needs not being, as well, addressed in others. Its contribution involved describing the deportation process and identifying the kinds of crimes being committed. There was no guarantee during the conflict, however, that anybody would be brought to justice.
The view had been that population movements had been trigged by the North Atlantic Treaty Organization (NATO) strikes and not the result of deportation policy, she added. So, her organization had tried to document movements of refugees and displaced persons. The organization was a medical one, but another contribution it had made in Kosovo to restoring justice was setting up an aid programme to rebuild roofs.
To a further question, Ms. HAYNER said it was important to look to local and national actors to design and think through the responses to those very difficult issues. Clearly, accountability must be addressed. There certainly was a risk of vigilante justice in places where the anger had been intense, but that kind of street justice was more likely in societies that had not grappled with accountability issues formally. She had not tried to suggest in her remarks that any form of dealing with past anger was acceptable. The international and national communities should always carefully consider which mechanisms should be put in place to respond to the opportunities at hand.
Mr. TÜRK, addressing a question about the perception of freedom fighters as terrorists, said that the panel was focused on re-establishing the rule of law and encouraging good governance. That had gone beyond the panel’s scope and related to a variety of situations in which there was continued military occupation and resistance, which might take the form of terror acts, to situations where the question of re-establishing the rule of law or encouraging good governance nationwide was not the main concern. Answers to that question should be put in concrete parameters of concrete situations.
It was impossible, for example to put the Palestinian situation in the same question as events in Chechnya, he added. Current United Nations efforts in the context of the Quartet were largely focused on diplomatic activity. Efforts were also being made to design a strategy to address all aspects of the problem, including humanitarian issues for the Palestinians, and security questions for the Israelis. In Chechnya, the possibilities of the international community were much more limited, as those were reduced to humanitarian assistance, which had recently resumed.
On the political level, activities were being pursued by a variety of international actors in Europe, which were trying to assist in building a rule of law, he said. Satisfactory, immediate solutions were not always possible. What was possible were small steps, with the understanding that those were not always satisfactory.
Responding to a series of questions, Mr. GAHIMA said the truth and reconciliation commission in South Africa had been considered for Rwanda. But, in Rwanda, where 1 million people had died and where entire families -- three and four generations -- had been wiped out, to talk of amnesty outright had been unacceptable to many. In such a situation, a government could only proceed on a path on which there was consensus. It would never have been possible to reach consensus about giving amnesty to the perpetrators of the genocide.
Mr. CORELL said, in response to another question, that he had just come from a meeting of the first Assembly of States Parties to the International Criminal Court. The Court would be a turning point in the history of mankind. Its very presence would send a strong signal that those who acted against mankind in the future would be held accountable. He was looking forward to a different direction from the past. If the road to the future was not changed, the world was doomed to repeat its past mistakes, he warned.
Ms. BOUCHET-SAULNIER explained that the goal of her organization was the provision of medical support to the victims of conflicts and natural disasters. Within its scope, it only worked in "open conflicts" and in situations of epidemics or problems of social fragility. Its work had been based on "the law of war"; non-governmental organizations were not all-powerful gods or arbitrators.
At times, her organization's help had been used to rally populations that would then be displaced, deported or even assassinated.
She added that the organization regularly published reports on such situations and decried situations where humanitarian aid was used for goals that would not enable the survival of a population. It had withdrawn from refugee camps in Zaire because it had thought that those had represented a military threat. At times, her organization had denounced crimes and ended its humanitarian action. In 1994, it had called for an armed intervention to put an end to the genocide in Rwanda; it had said it was not possible to stop genocide with physicians.
As the legal director of that organization, she said she was supervising training amid an ongoing debate about at what point it should it speak out or provide care. Non-governmental organizations could become accomplices or passive witnesses, so all physicians in her organization had a practical guide where the "law of war" had been translated into direct action for those on the ground. Since 1991, it had called for the creation of international tribunals and compiled reports and heard testimony on ethnic cleansing.
Ms. HAYNER, in response to another question, said that the issue of children as victims or perpetrators of violence -- or both -- was beginning to get more attention, and that would increase with new developments in Sierra Leone. Standards had been proposed in many areas, such as how to handle children's testimony.
Mr. TÜRK said the more complex involvement of the United Nations in post-conflict peace-building and justice had only come about recently. The question of the use of international professionals in such situations was under discussion, as was training in those issues for a wider range of international professionals. The critical question, though, related to local ownership.
Asked at what point crimes of war should be considered just plain crimes, Mr. CORELL said that the distinction, regardless of the stage of conflict, was always there and need not become a conceptual problem.
Mr. GAHIMA then reconfirmed that the earlier handling of genocide cases was not acceptable in terms of percentage of cases tried in the time that had passed since the crimes. That was why the Gacaca system had been developed. However, one could never be successful in dealing with genocide; it should be, rather, prevented. In response to another question, he said that a large percentage of women had been elected as both Gacaca judges and local representatives in Rwanda.
In answering a question about women's roles on truth commissions, Ms. HAYNER said that the record of truth commissions in redressing gender crimes was not very good, but lessons were beginning to be learned about how to incorporate the experiences of women in telling the complete truth of a conflict.
The importance of re-establishing the rule of law as part of peace-building was increasing, said Mr. CORELL, and individuals should use any contacts they had to promote international assistance in that area.
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