THE RULE OF LAW COLLABORATIVE

IN COLLABORATION WITH

U.S. DEPARTMENT OF STATE (INL)

JUSTRAC INTERAGENCY JUSTICE SECTOR TRAINING PROGRAM December 11-12, 2014, Washington, DC

ww.rolc.sc.edu

JUSTRAC TRAINING PROGRAM GOALS • Improve skills and knowledge of funding, designing, and managing justice sector programs in post-conflict and transitional states • Increase opportunities for coordination and collaboration among USG donors, implementers, nongovernmental organizations, academic institutions, foreign governments, and multilateral institutions

JUSTRAC TRAINING PROGRAM GOALS (CONT.)

• Strengthen justice sector programing to achieve positive improvements in the ability of host countries to reform their legal systems • Provide all stakeholders an opportunity to share experiences regarding justice sector programing

WHAT IS RULE OF LAW? Laws are: Predictable Clear Stable Publicized Prospective Equally enforced Binding on the State

“NON SUB HOMINE, SED SUB DEO ET LEGE”

Henry de Bracton (1210-1268)

WHAT IS RULE OF LAW? Rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights principles.1

1Sec.

Gen. of the United Nations 2004; JAG, Rule of Law Handbook; USAID’s Guide to Rule of Law Country Analysis: The Rule of Law Strategic Framework, vetted in 2003, updated 2010

WHAT IS RULE OF LAW? An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect.2 2 International

Bar Association, 2009

WHAT IS RULE OF LAW? RULE BY LAW

FORMAL ROL

ROBUST ROL

THIN

THICK

Law, an instrument of the State

Some restrictions on State powers

State bound by law

Laws changeable, selectively enforced

Laws clear, stable

Public consent transparency, accountability

Individual rights to property, contract, privacy (as long as they do not impinge on rights of the State)

Basic rights: dignity, justice, elections

Economic and social welfare rights

Source: Brian Tamanaha, On the Rule of Law

WHAT IS RULE OF LAW? I. Government is accountable under the law II. Laws are clear, publicized, stable, and fair, and protect fundamental rights and security III. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. IV. Access to justice is provided by competent, ethical, and independent adjudicators (with adequate resources and reflective of community).3 3World

Justice Project

COMPLEMENTARY/CONTENDING APPROACHES ROL and Justice Sector Reform

COMPLEMENTARY/CONTENDING APPROACHES Rule of Law and Democracy Promotion

COMPLEMENTARY/CONTENDING APPROACHES ROL/Justice Sector Reform and Development

COMPLEMENTARY/CONTENDING APPROACHES (CONT.) • Supply versus Demand approaches • Top/Down versus Bottom/Up approaches • “Lessons learned” and “best practices” vs. each case is unique

WHAT IS POLITICAL WILL? • Identity the incentive systems at work • Work both ends: Bottom/Up and Top/Down • Look for partners with credibility in the culture • Identify champions and spoilers • Ask and listen • Ask ourselves: “Are we building the future they want or the future we want for them?”

HOW DO WE MEASURE SUCCESS? (ARE ASSESSMENT CRITERIA DRIVING POLICY?)

• 2-3 year funding cycle with measurable outcomes vs. multigenerational change that progresses in fits and starts • Bricks and mortar • Personnel trained

• Convictions (never acquittals) • Measuring effort vs. impact

THE CHALLENGES OF INTERAGENCY COLLABORATION

INTERAGENCY RULE OF LAW AND JUSTICE SECTOR ROLES

Mission & Money

WHO ARE THE MAJOR ACTORS? • Department of State • USAID • Department of Justice • Department of Defense • Department of Commerce • Department of Homeland Security

• Others

AUTHORIZATIONS

• NSPD-44 (2005) gave DOS the lead, but also stressed coordination with DOD in conflict mitigation and prevention • DOD Directive 3000.5 (2005) Military Support for Stability, Security, Transition, and Reconstruction civilian-military teams coordinated with CSO

AUTHORIZATIONS (CONT.) • PPD 6 (9/22/10)“Development Policy” Sec. of State coordinates. Establishes Interagency Policy Committee on Global Development • QDDR (12/2010) adopts “whole of government” approach and strengthens INL’s coordinating role in ROL (Ch. 4) • PPD23 (4/5/2013) “Security Sector Assistance” gives DOS the lead in a “whole of gov’t approach”

THE BUREAUCRATIC CULTURES DOS: the ambassador as Chief of Mission oversees all non-combat activities in-country, coordinates with other USG agencies chiefs. DOS has it’s own personnel, but also relies on USAID, DOJ other agencies and contractors/implementers. USAID: broad developmental approach, Democracy, Human Rights & Governance, reaches remote areas, but subject to security restrictions.

THE BUREAUCRATIC CULTURES (CONT.)

DOJ has personnel and experience, focus is criminal justice, funding comes from DOS, World Bank, others. DOD has the personnel, budget and people in the field even in remote areas (COCOMs, PRTs: (Provincial Reconstruction Teams in Afghanistan).

DOS AND ROL • Bureau of International Narcotics and Law Enforcement Affairs (INL) – includes Criminal Justice Assistance & Partnership Office (CAP), also Offices on Afghanistan and Crime INL utilizes implementers and NGOs with subject matter expertise for program delivery with supervision and evaluation by INL personnel

• Bureau of Democracy, Human Rights and Labor (DRL) • Bureau of Conflict and Stabilization Operations

• Others: counter-terrorism, foreign assistance, gender issues, human trafficking

USAID AND ROL Bureau of Democracy, Conflict, and Humanitarian Asst. Center of Excellence on Democracy, Human Rights & Governance “governing justly and democratically” • Coordinates closely with DOS in planning • 110 USAID missions, led by Mission Directors, identify programmatic priorities, develop strategies, define projects • Focus is on long-term, sustainable development; timeframes are long in terms of planning and execution • Broad coverage in ROL: judges to legal ed. and civil society • USAID utilizes implementers and NGOs with subject matter expertise for program delivery with supervision and evaluation by USAID personnel

ROL IN DOJ •

Office of the Deputy Attorney General ─ Special ROL offices on Iraq and Afghanistan

• Overseas Prosecutorial Development, Assistance and Training (OPDAT) ─ Assists in training prosecutors and judicial personnel

• International Criminal Investigative Training Assistance Program (ICITAP) ─ Focuses on international crime and terrorism; training for law

enforcement personnel (e.g. police, prisons) ─ OPDAT and ICITAP are funded by DOS, USAID, DOD and Millennium Challenge Corp. Staff support by Conflict/Stability Ops.

• Also FBI, ATF, and DEA

ROL IN DOD • Office of the Secretary of Defense • The Judge Advocate General ─ JAG officers mostly focus on military justice but also advise on

ROL initiatives. JAG School ROL course

• Civil Affairs: Extensive ROL expertise • Military Police: Police and corrections training • Defense Institute of International Legal Studies (DIILS): ROL training for foreign lawyers • Defense Security Cooperation Agency • COCOMs: Africa, S. Asia, Latin Am., Pacific

COCOMS

DEPARTMENT OF COMMERCE • Commercial Law Development Program ─ Est. 1992 ─ Promotes commercial legal reforms in developing and

post-conflict countries ─ Expertise: trade, intellectual property, customs,

standards, transparency & governance, commerce

• Current projects in 32 countries

DEPT. OF HOMELAND SECURITY

• • • • • •

U.S. Customs and Border Protection U.S. Coast Guard Federal Emergency Management Agency Federal Law Enforcement Training Center Immigration and Customs Enforcement Transportation Security Administration

Title 10 and 22 Funds (of the U.S. Code)

• Title 10 funds U.S. military operations also interoperability, and familiarization training Congress can also authorize DOD to use Title 10 funds for specific purposes, in combat zones (e.g. Iraq and Afghanistan) or in response to specific humanitarian crises. • Title 22 funds foreign assistance and reconstruction. Funds may be transferred to other agencies.

DOS FUNDING SOURCES • Economic Support Fund (ESF) Timeframe: 2 yrs. FY 2014: $4.6b (Mostly used to support USAID) FY 2015: $5.1b requested

• Int’l Narcotics Control and Law Enforcement Fund (INCLE) FY 2014 $1.5b FY 2015 $1.1b requested

• Democracy & Human Rights Fund FY 2014: $64m FY 2015: $60m

• MENA Incentive Fund (new) $580m in 2014 $225m in 2015

OTHER DOS FUNDING Conflict and Stability Ops. FY 2014 $30.3m FY 2015 $43.9m Bureau for Counter-Terrorism FY 2015 $18.4m + amended OCO $1b in CT Partnership Fund Office to Monitor Trafficking in Persons FY 2014 $6.5m FY 2015 $6.3m All are processed through Office of U.S. Foreign Assistance F Bureau, DOS

USAID FUNDING FOR ROL Development Assistance: FY 2012 $2.5b FY 2013 CR $2.7b FY 2014 $2.5b FY 2015 $2.6b* request Bureau for Democracy, Conflict and Humanitarian Assistance (DCHA) FY 2013 $122.6 m FY 2014 $120.5 m FY 2015 $ 95.7m* request

USAID FUNDING FOR ROL (CONT.)

Rule of Law and Human Rights: FY 2011 $758m FY 2012 $950m FY 2013 CR $1.1b FY 2014 $474m

DOD FUNDING FOR RULE OF LAW • Afghanistan Security Forces Funds $ 5.7b in FY 2013, expired Sept. 2013

• Commander’s Emergency Response Program-CERP $ 200m in FY 2013, expired, Sept. 2013 .

• Defense Security Cooperation Agency (DSCA) FY 2012 FY 2013 FY 2014 FY 2015

$1.7b $1.3b $704.9m $544.8m

DEFENSE SECURITY COOPERATION AGENCY PROGRAMS • Regional Centers for Security Studies • Defense Institute of International Legal Studies • Defense Institute of Security Assistance Management • Warsaw Initiative Fund/Partnership for Peace Program • Combating Terrorism Fellowship Program • Regional International Outreach

DEFENSE SECURITY COOPERATION AGENCY PROGRAMS (CONT.) • • • • • • • •

Global Train and Equip Program Minister of Defense Advisors Defense Institution Reform Initiative Global Security Contingency Fund Coalition Support Funds Building Partnership Capacity Yemen and East Africa Increasing Partner Capacity Building in Rule of Law

ADDITIONAL DOD FUNDS Humanitarian Assistance (HA) Program: Est. 1986 “The Department and Combatant Commanders seek to help avert political and humanitarian crises, promote democratic development and regional stability, and enable countries to begin to recover from conflicts.”

ADDITIONAL DOD FUNDS (CONT.) Now designated: Overseas Humanitarian, Disaster, and Civic Aid FY2013 estimated $139.4m for 442 projects FY2014 $109.5m through 9/30/15 FY2015 $100m* requested Identified by Combatant Commands in coordination with DOS and USAID missions

SHOULD THE UNITED STATES DO IT ALL? • Mandate is multilateral, but… • Better coordination with foreign partners • Better coordination with NGOs, IOs

FOREIGN ASSISTANCE AS % OF GNI Sweden Norway Luxembourg Denmark Netherlands U.K. Belgium Finland Ireland France Switzerland Germany

1.02% 1.00 0.99 0.86 0.75 0.56 0.53 0.52 0.52 0.46 0.46 0.40

Australia Canada Spain Portugal New Zealand Austria U.S. ranks 19th Italy Japan S. Korea Greece

0.35% 0.31 0.29 0.29 0.28 0.27 0.20 0.19 0.18 0.12 0.11