7.10 Trade-offs

7.10.1 Culture vs. human rights. Rule of law requires that all laws and institutions conform to international human rights norms and standards.₃₃₈ But best practice suggests that a state’s culture should be respected. Very often, human rights standards are at direct odds with aspects of culture (e.g., treatment of women; cruel, inhuman punishments delivered by the non-state justice system). The international community can take a firm position that the country should work toward achieving international human rights standards, a goal which can be achieved incrementally. Certain core standards such as the prohibition against torture can be insisted upon in the short term. In other cases, the international community should support dialogue on human rights and culture and support reform constituencies that are pro-human rights.

7.10.2 Security vs. human rights. Security and human rights are often pitted against each other in the aftermath of conflict, where insecurity reigns. Some insist that security takes precedence over human rights. The provision of security to the population, however, is a human right, and these are not mutually exclusive concepts. States around the world work to balance the need to protect the security of the population with human rights guarantees. Violations of human rights will have been the hallmark of the prior oppressive regime. In the aftermath of conflict, abandoning human rights principles at the very moment they need to be promoted sends a message to the population that human rights do not matter and they will be harder to build later.

7.10.3 Peace vs. justice. There is a strong call for justice after conflict for conflict-related abuses. At the same time, the imperative of peace needs to be protected. In some instances, measures to ensure that justice is administered against certain individuals may ignite tensions and may negatively impact a fragile peace. The question often arises about whether to prosecute and ensure justice or not to prosecute and preserve peace. Some argue that there should be no political considerations taken into account and that justice should prevail at any cost. Others argue that it is more important to preserve peace than to go after individual perpetrators immediately after conflict. Any decision on whether to pursue justice against certain individuals, whose prosecution may impact peace, should be carefully considered.

7.10.4 Quick fixes vs. a strategic approach.₃₃₉ There is the temptation, coupled with a sense of urgency, to “do” and to start fixing the justice system immediately. This approach has resulted in suboptimal results in the past. There are certainly activities that can promote rule of law in the short term. However, a strategic approach is much more likely to be successful in the long term.

7.11 Gaps and Challenges

7.11.1 Comprehensive, coordinated rule of law assessments. Assessments need to be taken more seriously and more money, time, and effort need to be invested in them, both immediately after conflict and thereafter. A standard assessment methodology involving the legal and extra-legal components needs to be developed. A greater effort to share assessments among the international community is also required.

7.11.2 Monitoring and evaluation. Monitoring and evaluation of rule of law assistance is not taken seriously by the international community; many staff are not trained and funds are not allocated to do it properly. Monitoring and evaluation needs to be prioritized and the results need to be shared widely so that the field as a whole can grow and learn from past experiences.

7.11.3 Prioritization and sequencing. There is no methodology or policy guidance on how to sequence and prioritize rule of law assistance. The international community does not fully understand what assistance to provide when and at what juncture that assistance will be the most effective. This is because it knows little about how positive change occurs and how to support it.₃₄₀ There is an urgent need for systematic research and discussions on change and how rule of law is brought about.₃₄₁

7.11.4 Prioritization of noncriminal justice assistance. Criminal justice is often prioritized as the primary focus for rule of law assistance. Other important areas of potential assistance, such as property rights or public administration reform, have not been addressed. Property issues and displacement can affect a large percentage of the population.₃₄₂ More people may deal with the state’s public administration than with the criminal justice system on matters such as civil registration and health services.₃₄₃ Research and the development of best practices in these fields needs to be developed.

7.11.5 Engagement with non-state or religious justice systems. While it is agreed that there needs to be engagement with the non-state justice system to promote the rule of law, the international community does not fully understand these systems, how they operate, what to do with regard to human rights issues, and even less so, what assistance measures promote the rule of law. Empirical, comparative research is needed. In addition, research is needed to look at how to deal with non-state, religious systems of justice and how to integrate religious considerations into rule of law assistance overall.

7.11.6 Capacity development of international and host nation rule of law staff. Rule of law practitioners often go to work in societies emerging from conflict with very little rule of law experience. The rule of law community needs to ensure the highest level of training for rule of law practitioners, coordinate around core content of education and training, and require that practitioners have the requisite skills and knowledge to do their job. Rule of law practitioners could also benefit from a community of practice, where new initiatives, documents, or research can be shared and discussed.₃₄₄ The international community should support the training of host nation actors on rule of law to support ownership and capacity development.

7.11.7 Gender mainstreaming. The international community is not adept in mainstreaming gender through rule of law assistance, including ensuring women’s needs are met by justice institutions, that women have equal access to justice and fair treatment under the law,₃₄₅ and that women participate in the development of rule of law strategies. Many of the crimes committed against women in conflict and after (e.g., domestic violence, rape) are not adequately addressed. Just like human rights, gender should be mainstreamed through all rule of law assistance measures. The international community should develop strategies for this to address sexual- and gender- based violence that occurs during and after violent conflict.