August 24, 2016

Post-conflict Strategies for “Non-recurrence”

Director, ABA Rule of Law Initiative

I was pleased to participate this month in a seminar convened by the International Legal Assistance Consortium (ILAC) to discuss justice system strengthening with Pablo DeGreiff, UN Special Rapporteur on the Promotion of Truth, Justice, Reparations, and Guarantees of Non-recurrence. DeGreiff’s 2015 annual report to the UN General Assembly focused on “Guarantees of Non-recurrence” and highlighted the value of judicial capacity building as a strategy for preventing a return to violence. He noted that while many truth commissions have encouraged judicial reform in transitional settings, there has been little attention paid to the specifics of such reform, what works, when, why, and how. The ILAC seminar was convened to address this gap, what DeGreiff has called “the lack of focus and strategy in discussions about guarantees of non-recurrence, and … the disconnect between transitional justice and other policy interventions with which it coexists but rarely interacts.” Drawing on ABA ROLI’s work in numerous post-conflict states, I offered the following observations about judicial system strengthening in such settings and several key strategies we have found effective:

First, as in all rule of law assistance, post-conflict strategies must be context-specific, grounded in thorough analysis of the rule of law gaps that contributed to violence and in a realistic assessment of both the opportunities for and impediments to reform. Critically important is participation of affected communities in the development of a transitional blueprint, not only because it yields a better plan, but the participation itself can be transformative, building important new constituencies for a rule of law future. ABA ROLI’s Access to Justice Assessment Tool and Guide to Community Participation in Transitional Justice provide two examples of tools for such consultative assessment.

Second, it must be recognized that judicial reform in any context, and particularly in post-conflict settings, is a long-term, even generational, project. Few initiatives will yield results in one funding cycle or in the course of a single peacekeeping mandate. This is not to invite complacency or to suggest that strengthening the justice sector should not be an immediate post-conflict priority. To the contrary, if for no other reason, it should be prioritized because it takes a long time and we therefore need to get started on it as soon as possible. But donors and policy-makers need to understand the judicial reform process and approach the commitment differently, as a long-term investment.

Even as we acknowledge that justice system strengthening takes time, we can work to identify strategies that are particularly effective. ABA ROLI’s work highlights six particularly salutary approaches:

  • Constitutionalism. It may seem obvious, but it is so important that it bears underscoring:  getting the constitution right is a critical first step in a post-conflict setting. Though alone not a guarantee of non-recurrence, it is essential to craft a constitution that includes fundamental rights protections and institutional checks and balances (especially, as we have painfully discovered in too many contexts, against future constitutional amendment to undermine those protections). Equally important is a consultative approach to constitution-making. Programs such as ABA ROLI’s current efforts to facilitate community input into constitutional processes in Libya and the Central African Republic help produce sustainable constitutions that reflect the interests of and have stakeholders among a broad and representative base of the affected population.

  • Next Generation. Recognizing that judicial reform can be a generational effort, the best money is often placed on the next generation. This was the strategy ABA ROLI took to good effect in Liberia, where we supported the establishment of a new judicial training institute and trained its resources on developing a strong new cadre of magistrates to reshape the country’s court system.

  • Regionalism. A third important strategy is to address justice system strengthening regionally, networking justice sector actors across national boundaries for training, sharing of lessons learned, collective problem solving, and mutual support. As ABA ROLI has learned with its Balkan Regional Rule of Law Network and African Center for Justice, such regional networks can take advantage of linguistic and legal affinities, common regional norms or legal frameworks such as the regional human rights mechanisms, and even some healthy neighborly competition.

  • Provincialism. While looking across borders is sometimes effective, another worthwhile approach can be to take the reform effort out of the capital and major power centers and into more remote provinces of a country, areas that have sometimes seen the most intense and brutal conflict. In some contexts, where powerful, entrenched central authorities may resist change, there may nonetheless be political will and room for reform at the provincial or local level, providing a valuable opportunity to advance important rights and lay the groundwork for a new rule of law culture. This is a strategy that ABA ROLI has effectively pursued in the Democratic Republic of Congo (DRC), working in North and South Kivu to support investigators, prosecutors, and judges, together with victims groups, to stand up mobile courts to pursue accountability for more than 20,000 victims of sexual and gender based violence.

  • Comprehensive Approaches. Another lesson our work in the DRC teaches is the benefit of comprehensive approaches, marrying support for both the institutions that must deliver justice and the civil society organizations that can demand it. Whenever possible, post conflict justice system strengthening should in this way attack impunity and rule of law gaps from all sides.

  • Follow the Money. A final strategy that we have found particularly important in post-conflict settings is to tackle the corruption and criminality that often finances violence and abuse. Thus, programs that develop capacity to counter trafficking in persons, drugs and weapons or to curb corruption should be pursued alongside accountability for gross violations of human rights. Accountability for both kinds of crimes is critical to peace building, and the perpetrators are often the same.

I offer these observations to what I hope will be an on-going conversation in the transitional justice, peace-building and rule of law development communities. ABA ROLI has developed these approaches through a process of trial and error in our work in more than 100 countries, many of them emerging from conflict and a recent past characterized by gross violations of human rights. Special Rapporteur DeGreiff correctly notes that, as a field of practice, we have not done enough to theorize, evaluate and quantify the change such strategies make. I welcome his challenge to us to do so and look forward to sharing ABA ROLI’s efforts to innovate and hone effective strategies to guarantee non-recurrence.

Director, ABA Rule of Law Initiative