Rule of Law after War and Crisis

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RULE OF LAW AFTER WAR AND CRISIS

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SERIES ON TRANSITIONAL JUSTICE

Th e Series on Transitional Justice off ers a platform for high-quality research within the rapidly growing fi eld of transitional justice. Th e research is, of necessity inter-disciplinary in nature, drawing from disciplines such as law, political science, history, sociology, criminology, anthropology and psychology, as well as from various specialised fi elds of study such as human rights, victimology and peace studies. Furthermore, the research is international in outlook, drawing on the knowledge and experience of academics and other specialists in many diff erent regions of the world.

Th e series is aimed at a variety of audiences who are either working or interested in fi elds such as crime and justice; human rights; humanitarian law and human security; confl ict resolution and peace building. Th ese audiences include academics, researchers, students, policy makers, practitioners, non-governmental organisations and the media.

All books published within the series are subject to a double-blind peer review by recognised authorities in the fi eld.

Th e General Editors of the Series are:

– Prof. Stephan Parmentier (Catholic University of Leuven, Belgium)

– Prof. Jeremy Sarkin (United Nations Working Group on Enforced or Involuntary Disappearances)

– Prof. Elmar Weitekamp (University of Tübingen, Germany)

Th e general editors receive the support from an Editorial Committee and an Advisory Board, consisting of internationally renowned academics and practitioners.

Published titles within the series:

1. Stephen Peté & Max Du Plessis, Repairing the Past? International Perspectives on Reparations for Gross Human Rights Abuses (2007), 978-90-5095-492-1

2. Laura Stovel, Long Road Home, Building Reconciliation and Trust in Post-War Sierra Leone (2010), 978-94-000-0028-5

3. Andy Aitchison, Making the Transition. International Intervention, State-Building and Criminal Justice Reform in Bosnia and Herzegovina (2011), 978-94-000-0140-4 4. Stef Vandeginste, Stones left unturned. Law and Transitional Justice in Burundi (2010),

978-94-000-0115-2

5. Antoine Buyse (ed.), Margins of Confl ict. Th e ECHR and Transitions to and from Armed Confl ict (2011), 978-94-000-0157-2

6. Gaby Oré Aguilar and Felipe Gómez Isa (eds.), Rethinking Transitions. Equality and Social Justice in Societies Emerging from Confl ict (2011), 978-1-78068-003-3

Series on Transitional Justice, Volume 7

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RULE OF LAW AFTER WAR AND CR ISIS

Ideologies, Norms and Methods

Richard Zajac Sannerholm

Cambridge – Antwerp – Portland

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Rule of Law aft er War and Crisis: Ideologies, Norms and Methods Richard Zajac Sannerholm

Cambridge – Antwerp – Portland

www.intersentia.com | www.intersentia.co.uk

ISBN 978-1-78068-008-8 NUR 828

British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

No part of this book may be reproduced in any form, by print, photoprint, microfi lm or any other means, without written permission from the publisher.

Distribution for the UK:

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For Marcella and Levi

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Intersentia vii

ACKNOWLEDGEMENTS

Th is book draws on work presented in a Ph.D. dissertation at the University of Örebro, Sweden. I was fortunate in having Per Bergling and Joakim Nergelius as supervisors, and wish to extend my gratitude for their advice and encouragement. In writing this book and the dissertation that went before it I have incurred many debts. I would like to give a heartfelt thanks to Antonina Bakardjieva-Engelbrekt, Martin Krygier, Anna Jonsson, Vivienne O’Connor, Mauro Zamboni, Erik Wennerström, Debra Liang-Fenton, Claes Sandgren, Veronica Taylor, Ingrid Österdahl and Michael Bogdan, for help at various stages of this project

I extend the warmest thanks to my family and friends for their unstinting encouragement over the years. Lastly, Marcella – without your untiring support and insightful comments I sincerely doubt whether this book would have come into being.

Notwithstanding the many debts incurred, any remaining errors are my own doing.

Falkenberg, August, 2011 Richard Zajac Sannerholm

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Intersentia ix

PR EFACE

Th is work concerns itself with rule of law assistance in the aft ermath of war and crisis. Over the past decade, rule of law has emerged as an essential objective in state-building missions. Th is has led to a host of programmes and projects on law reform, constitutional development, judicial training, and institutional establishment.

Th e overriding purpose of this book is to describe and analyse the eff ects of international assistance, norms and standards on post-crisis legal, judicial and administrative systems. Th ree central areas are examined – how the rule of law is conceptualised by international actors; what the principal methods are for putting the concept into eff ect; and eff ectiveness and international accountability in rule of law assistance.

Th e fi rst part of this work begins with a description of how diff erent ‘types’ of confl ict aff ect legal and administrative systems, and what forms of intervention have been employed. It then moves on to analyse how the rule of law is conceptualised by specifi c international actors and the ‘ideologies’, views and interests underpinning the various defi nitions. Th is examination provides common characteristics and a framework upon which successive chapters are constructed.

Th e relevance of rule of law conceptualisations is also discussed, particularly their prime relevance to criminal, constitutional, or administrative law.

Th e second part of the book concentrates on what the principal methods are that international actors apply within rule of law assistance. Following three broad themes – law reform and constitutional reform, institution-building, and access-creation – the typical approaches of international agencies are discussed.

In other words, what types of approach work, the main diffi culties involved, and how methods in rule of law assistance can be improved. Th e emerging lack of accountability and eff ectiveness is then addressed, particularly ways of enhancing the mutual accountability of international reformers and national authorities.

Part three is forward-looking and makes suggestions for improving rule of law reform aft er war and crisis.

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Intersentia xi

LIST OF ABBR EVIATIONS

ABA American Bar Association

BiH Bosnia and Herzegovina

CEELI Central and Eastern European Legal Initiative

CPA Coalition Provisional Authority

CRPC Commission on Real Property Claims of Refugees and Internally Displaced Persons

CSCE Conference on Security and Cooperation in Europe

DfID Department for International Development

DPKO UN Department of Peacekeeping Operations

DRC Democratic Republic of the Congo

EC European Commission

ECOWAS Economic Community of West African States

EU European Union

EUJUST LEX EU Integrated Rule of Law Mission in Iraq EUJUST THEMIS EU Rule of Law Mission in Georgia

EULEX EU Rule of Law Mission in Kosovo

GEMAP Governance and Economic Management Assistance

Program

GooB Government Out of the Box

HPCC Housing and Property Claims Commission

HPD Housing and Property Directorate

IACA Independent Anti-Corruption Agency

ICC International Criminal Court

IJC Independent Judicial Commission

ILA International Law Association

IMF International Monetary Fund

INGO International Non-Governmental Organisation

JSAP Judicial System Assessment Programme (Bosnia and

Herzegovina)

JSMP Judicial System Monitoring Programme

KFOR Kosovo Force

KJC Kosovo Judicial Council

KLA Kosovo Liberation Army

KPA Kosovo Property Agency

KTA Kosovo Trust Agency

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List of Abbreviations

xvi Intersentia

LOJC Law of Organisation and Jurisdiction of Courts of the Islamic Republic of Afghanistan

LSMP Legal System Monitoring Programme

MINUSTAH United Nations Stabilization Mission in Haiti

MONUC United Nations Organization Mission in the Democratic Republic of Congo

NGO Non-governmental organisation

OECD Organisation for Economic Cooperation and Development

OHCHR Offi ce of the High Commissioner for Human Rights

OHR Offi ce of the High Representative

OIOS Offi ce of Internal Oversight Services

OSCE Organization for Security and Cooperation in Europe PHARE Poland and Hungary: Assistance for Restructuring their

Economies

PIC Peace Implementation Council

PISG Provisional Institutions for Self-Government

SIGMA Support for Improvement in Governance and Management

SRSG Special Representative of the Secretary-General

SSR Security Sector Reform

TAL Transitional Administrative Law

UN United Nations

UNAMA United Nations Assistance Mission in Afghanistan UNAMET United Nations Administration Mission in East Timor UNAMI United Nations Assistance Mission for Iraq

UNBIJ UN Basic Principles on the Independence of the Judiciary UNBPRL UN Basic Principles on the Role of Lawyers

UNBRO UN Border Relief Operation

UNDP United Nations Development Program

UNGA United Nations General Assembly

UNGRP UN Guidelines on the Role of Prosecutors

UNMIBH United Nations Mission in Bosnia and Herzegovina UNMIK United Nations Administration Mission in Kosovo

UNMIL United Nations Mission in Liberia

UNOCI United Nations Mission in Cote d’Ivoire UNODC United Nations Offi ce on Drugs and Crime

UNOSOM United Nations Operation in Somalia

UNSG United Nations Secretary-General

UNTAC United Nations Transitional Authority for Cambodia UNTAES United Nations Transitional Administration for Eastern

Slavonia, Baranja and Western Sirmium

UNTAET United Nations Transitional Administration in East Timor

US United States

USAID United States Agency for International Development