PRACTITIONER’S GUIDE

Understanding the International Rule of Law Community, its History, and its Practice August 2015

Written By: Dr. Vivienne O’Connor

   

 

INPROL - International Network to Promote the Rule of Law  

PRACTITIONER’S GUIDE

Understanding the International Rule of Law Community, its History, and its Practice August 2015 Written By: Dr. Vivienne O’Connor

Note: All opinions stated in this Practitioner’s Guide have been made in a personal capacity and do not necessarily reflect the views of particular organizations. INPROL does not explicitly advocate policies.

The International Network to Promote the Rule of Law (INPROL) is a global, online community of practice. Members come from a range of relevant disciplines and backgrounds. What we all have in common is that they work on rule of law reform issues in post-conflict and developing countries, from a policy-, practice-, or research-perspective. We also share a desire to learn and innovate together as a community in order to improve their rule of law knowledge and practice. INPROL is spearheaded by the United States Institute of Peace in partnership with the US Department of State’s Bureau of International Narcotics and Law Enforcement; the Center of Excellence for Police Stability Unit; the OSCE Strategic Police Matters Units; the William & Mary School of Law; and the International Institute for Law and Human Rights. For additional information, visit www.inprol.org. For questions or comments about this publication, please contact us at [email protected].

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Table of Contents

I. INTRODUCTION ............................................................................4 II. INTERNATIONAL ORGANIZATIONS THAT PROVIDE RULE OF LAW ASSISTANCE ......................................................................... 5 A. INTRODUCTION ...............................................................................................5 B. THE UNITED NATIONS.....................................................................................5 C. INTERNATIONAL ORGANIZATIONS .................................................................. 10 D. REGIONAL ORGANIZATIONS ........................................................................... 11 E. MULTILATERAL DEVELOPMENT BANKS (INTERNATIONAL AND REGIONAL) ...... 12 F. BILATERAL DONORS ...................................................................................... 13 G. INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS, FOUNDATIONS, AND OTHERS ........................................................................................................ 15 H. PRIVATE FIRMS AND CORPORATIONS ............................................................. 17 III. THE HISTORY OF RULE OF LAW ASSISTANCE IN CONFLICTAFFECTED STATES ...................................................................... 18 A. INTRODUCTION ............................................................................................. 18 B. THE FIRST WAVE OF RULE OF LAW ASSISTANCE (1945-1965) ........................ 18 C. THE SECOND WAVE OF RULE OF LAW ASSISTANCE (1965-LATE 1970’S) .......... 19 D. THE THIRD WAVE OF RULE OF LAW ASSISTANCE (1980-1990)....................... 19 E. THE FOURTH WAVE OF RULE OF LAW ASSISTANCE (1990-2000) .................. 20 F. THE FIFTH WAVE OF RULE OF LAW ASSISTANCE (2000-2014) ....................... 21 IV. CRITIQUES OF RULE OF LAW ASSISTANCE .............................. 23 V. GUIDING PRINCIPLES FOR THE INTERNATIONAL RULE OF LAW COMMUNITY ............................................................................... 27 A. BASE ASSISTANCE ON THE UNIQUE COUNTRY CONTEXT ................................. 28 B. TAKE INTO ACCOUNT THE POLITICAL CONTEXT OF THE COUNTRY .................. 28 C. ENSURE NATIONAL/LOCAL OWNERSHIP OF RULE OF LAW STRATEGIES .......... 28 D. ENSURE A STRATEGIC APPROACH TO REFORM ............................................... 29 E. BASE ASSISTANCE ON INTERNATIONAL NORMS AND STANDARDS .................... 30 F. ENSURE COORDINATION OF THE INTERNATIONAL RULE OF LAW COMMUNITY . 31 G. MEASURE THE IMPACT OF RULE OF LAW ASSISTANCE ..................................... 31 VI. A NEW AND EMERGING APPROACH TO RULE OF LAW ASSISTANCE ................................................................................ 33 VII. ENDNOTES ................................................................................ 35

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I.

Introduction If you have ever been at the airport in a conflicted-affected country when an international flight arrives, you would likely have seen the parking lot full of four-wheel drive vehicles with the logos of various international organizations painted on the side. Incoming flights are full of the staff of these organizations and international consultants. The scene can be confusing and chaotic and that is how it can be for those trying to figure out who is who in the burgeoning field of international rule of law assistance. The constant stream of international actors can be incredibly overwhelming for both the government and civil society in a conflict-affected country. Not only are the international actors coming from unheard-of organizations with their own priorities and mandates, but they are also speaking a foreign language, and I am not just talking about English. It is the language of peacebuilding, development, and international assistance. They use acronyms and technical terminology, previously unheard of in the country. The international rule of law assistance field is not only confusing for national actors. For international staff who are new to the field, it can be equally overwhelming to learn about the hundreds of organizations providing rule of law assistance. International and national actors may be equally unaware of the history of the international rule of law community and its track record of success, or more appropriately, its lack of success. Because of this, they are often doomed to continue to make the mistakes of the past. This Practitioner’s Guide attempts to lessen the confusion about who is providing rule of law assistance in conflict-affected countries. Section I will give an overview of the categories of these organizations, giving specific examples in each category. Section II will then provide a history of rule of law assistance. It is especially important for national actors and international actors to examine the mistakes of the past, so that they are not repeated in the country they are working in. Section III outlines a number of critiques of the international rule of law assistance. These critiques have been acknowledged by the international community, and in an effort to do better, it has created principles to guide rule of law assistance. These principles are explained in Section IV. Finally, Section V ends the guide on a more optimistic note by exploring more novel approaches to rule of law assistance that are currently being pioneered.

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II.

International Organizations That Provide Rule of Law Assistance A. Introduction The rule of law community has been compared to a local market, or bazaar, that is “confusing and over-crowded.”1 There is a mix of international and national, public and private, religious, military and civilian organizations all seeking to assist conflict-affected countries in building the rule of law. This section aims to provide a summary of these different types of organizations, which will be dealt with under the following headings: •

The United Nations;

•

International Organizations;

•

Regional Organizations;

•

The Multi-Lateral Development Banks;

•

Bilateral Donors;

•

International Non-governmental Organizations, Foundations, and Others; and

•

Private Firms and Corporations.

For the purposes of this guide, the individuals who work for these organizations will be called “rule of law practitioners.” Rule of law practitioners may be employed full-time by a rule of law organization or they may be involved with the organization on a voluntary basis. Part-time rule of law practitioners, because they already have full-time jobs, will likely travel to a conflict-affected country for a short period of time (e.g., to conduct a training course). Full-time practitioners may either be based in their home country (usually making frequent visits to the conflict-affected country) or they may live in the conflict-affected country.

B. The United Nations There are some 40 UN entities and agencies that are engaged in providing rule of law assistance,2 extending to approximately 150 developing and conflict-affected countries around the world.3 It is common for countries to have more than one UN entity working in them. In fact, at least 70 of 150 countries with a UN presence have at least three UN agencies providing rule of law assistance.4

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Some UN entities are working around the world on the basis of a global mandate. For example, UNICEF works on children’s rights; UN Women focuses on the realization of equality and rights for women; and the Office of the High Commissioner for Human Rights specializes in identifying, highlighting, and developing responses to today’s human rights challenges. In order for those organizations to work in a country, they must get the permission of the government of that country and enter into a written agreement.5

Peacekeeping “Peacekeeping” has been defined as “the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well. Peacekeeping is a technique that expands the possiblities for both the prevention of conflict and the making of peace.”

Other UN entities, such as the Department of Peacekeeping Operations and the Department of Political Affairs, only work in conflict-affected contexts. Peacekeeping6 operations are only established on the basis of a mandate from the Security Council. The Department of Peacekeeping Operations is then responsible for setting up and overseeing these missions, of which there are currently fifteen around the world. The Department of Political Affairs is responsible for the operation of “Special Political Missions.” Special Political Missions are established either by the Security Council or the General Assembly, based on the recommendations of the Secretary-General.7 A historical overview of peace operations and Special Political Missions that have undertaken rule of law functions will be provided below in Section III.

Special Political Missions Special Political Missions are “civilian missions that are deployed for a limited duration to support Member States in good offices, conflict prevention, peacemaking and peacebuilding. They have been grouped in three main categories, or clusters, namely special envoys; sanctions panels and monitoring groups; and field based missions.”*1 Special envoys play a role in conflict prevention and mediation and rely on diplomatic means to defuse tensions and resolve disputes and to support peace talks.*2 There are 11 such missions today.*3 Some are based at the UN Headquarters in New York, others are based in their home countries, and some have small country offices.*4 Sanctions panels and monitoring groups monitor the implementation of Security Council resolutions and track and report on the sanctions measures imposed by the Security Council.*5 There are currently 11 panels working around the world. The panels are based at the UN Headquarters in New York and in their home countries.*6 Field-based special political missions include regional offices and country-specific missions.*7 There are currently 15 such missions. Sources: United Nations, United Nations Political Missions: Report of the SecretaryGeneral. Accessed May 1 2015. *1

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http://www.un.org/wcm/webdav/site/undpa/shared/undpa/pdf/1345835_web.pdf. pg. 2.

Joint Programing A Joint Program is a set of activities contained in a common work plan and a related budget involving two or more Participating UN Organizations and national or subnational partners.

Multi-Donor Trust Fund A Multi-Donor Trust Fund is is a multi-agency funding mechanism designed to receive contributions from multiple donors that are held in trust by the appointed Administrative Agent (AA), which is usually the UN Development Program.

*2

Ibid, 7.

*3

Ibid, 11.

*4

Ibid.

*5

Ibid.

*6

Ibid.

*7

Ibid.

With so many UN entities undertaking rule of law functions, internal coordination has presented a challenge. In order to enhance cooperation at the Headquarters level, the Rule of Law Coordination and Resource Group was established in 2007,8 supported by the Rule of Law Unit.9 In September 2012, the Department of Peacekeeping Operations and the United Nations Development Programme co-created the Global Focal Point for Police, Justice and Corrections Areas in the Rule of law in Post-Conflict and Other Crisis Situations to ensure rule of law “delivery as one.”10 The Global Focal Point provides assistance to UN entities working in conflict-affected and developing countries on police, justice, and corrections reform. Joint Programming11 is becoming more common within the UN system,12 as are the use of pooled funds from donors through “Multi-Donor Trust Funds13.” At the country level, where there is a peace operation, a “Special Representative of the Secretary-General” (SRSG) will be appointed. For Special Political Missions, the most senior official may be called an SRSG, Executive Representative of the Secretary-General (ERSG), Representative of the Secretary-General (RSG), or Special Coordinator.14 Where there is no peace operation or political mission, the “Resident Coordinator” is the most senior UN official and is responsible for coordinating all UN entities on the ground in a developing country (“the Country Team”). Supported by the UN Development Programme, there are current 150 Resident Coordinators around the world.15 In some countries, the Resident Coordinator will head up a “Joint Office,” where a number of UN entities are co-located.16 Once a peace operation or Special Political Mission is created in a conflict-affected country, the Resident Coordinator may continue to operate in a leadership role alongside the peace operation or political mission. In the alternative, in what is called an “integrated mission,”17 a Resident Coordinator will report to the SRSG, ERSG, RSG, or Special Coordinator, as is the case in the Central African Republic, Sierra Leone, Guinea Bissau, and Timor-Leste. What follows is a summary of the main UN entities that provide rule of law assistance in conflict-affected countries:

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•

The Department of Political Affairs (DPA), which is based at the UN Headquarters in New York, is engaged in rule of law activities through its oversight of Special Political Missions. There are current twelve such missions operating in Burundi,18 the Central African Republic,19 Guinea-Bissau,20 Central Africa,21 West Africa,22 Sierra Leone,23 Libya,24 Somalia,25 Central Asia,26 Iraq,27 Lebanon,28 and Israel/Palestine.29 In addition to the field missions, DPA has UN envoys or special advisors that work on rule of law issues in a range of countries including Cyprus, Yemen, Myanmar/Burma, Sahel, Syria, Western Sahara, and FYROM-Greece30. DPA is also involved in the negotiation of peace agreements and brings rule of law experts to assist mediators and partners involved in the negotiations.31 Over the past number of years, DPA has taken a role in creating investigative commissions like the International Commission Against Impunity in Guatemala (CICIG), which was tasked with dismantling criminal networks, and the International Independent Investigation Commission in Lebanon (UNIIIC) that was established to investigate the assassination of Prime Minister Rafik Hariri.32 Finally, DPA houses the Secretariat for the United Nations Counter-Terrorism Implementation Task Force, which coordinates UN actions to implement the UN Counter-Terrorism Strategy.33

•

Established in the mid-1990’s, The Department of Peacekeeping Operations (DPKO) (along with the Department of Field Support), based in the UN Headquarters in New York, is responsible for the establishment and management of peace operations, of the type discussed below in Section III. As will be discussed, the peace operations undertake substantial rule of law related tasks. Through the Office of Rule of Law and Security Institutions and its dedicated offices, DPKO provides expertise guidance and support to UN peace operations.34

•

Established in 1993, The Office of the High Commissioner for Human Rights (OHCHR) is the UN office mandated to promote and protect human rights for all. It provides a forum for identifying, highlighting, and developing responses to today’s human rights challenges, and acts as the primary focal point of human rights research, education, public information, and advocacy activities in the UN.35 OHCHR Headquarters is based in Geneva. In addition, OHCHR has country offices in places like Togo, Angola, Uganda, Tunisia, Yemen, Cambodia, Bolivia, Colombia, Guatemala, and Mexico, 36 as well as having advisors in seventeen countries.37 Finally, OHCHR human rights advisors work on rule of law issues as part of DPKO peace operations (e.g., in Liberia, Haiti, Afghanistan, Georgia/Abkhazia, Ethiopia, and Eritrea) and in DPA Special Political Missions (e.g., in Iraq, Libya, Sierra Leone, Guinea Bissau, the Central African Republic, Chad, the Democratic Republic of the

Department of Peacekeeping Operations DPKO’s Offices are the Criminal Law and Judicial Advisory Service; the Disarmament, Demobilization and Reintegration Section; the Security Sector Reform Unit; and the United Nations Mine Action Service.

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Congo, Ivory Coast, and Burundi).38 In the rule of law sphere, OHCHR works on strengthening access to justice.39 It also advises on how domestic legislation and procedures can comply with international human rights law. Further, it provides rule of law related trainings and seminars to national legal systems and judiciaries.40 Finally, OHCHR plays an active role in the Counter-Terrorism Implementation Task Force established by the Secretary-General under the UN Global Counter-Terrorism Strategy and plan of action, and leads its working group on protecting human rights while countering terrorism.41

Development “Development” or “human development” is about “enlarging people’s choices… greater access to knowledge, better nutrition and health services, more secure livelihoods, security against crime and physical violence, satisfying leisure hours, political and cultural freedoms and sense of participation in community activities. The objective of development is to create an enabling environment for people to enjoy long, healthy and creative lives."

•

The United Nations Development Programme (UNDP) is the UN organization dedicated to promoting development42 around the world. It is on the ground in 177 countries, 2o of those being conflict-affected countries like Afghanistan, the Democratic Republic of the Congo, Burundi, Guinea Bissau, Haiti, Liberia, and Nepal.43 It works with both state justice actors to develop the capacity of the justice system, as well as with civil society to enhance physical and legal protection of communities and ensure access to justice and empowerment of communities and civil society.44

•

The United Nations Office on Drugs and Crime (UNODC) was established in 1997 to lead the UN’s efforts to fight against illicit drugs, international crimes (e.g., trafficking in persons, smuggling of persons, corruption, and organized crime) and terrorism. UNODC Headquarters is based in Vienna, Austria. UNODC also operates in 150 countries around the world. It has regional offices, sub-regional offices and centers, and country and project offices in places like Afghanistan, Colombia, Iran, Myanmar/Burma, Nigeria, Pakistan, South Africa, Thailand, and Vietnam.45 UNODC provides technical cooperation to countries looking to counteract illicit drugs, crime, and terrorism; it conducts research and analysis on drug and crime issues; and it assists states in ratifying and implementing international treaties on drugs, crime, and terrorism, and drafting implementing legislation.46

•

The United Nations Children’s Fund (UNICEF) supports governments and civil society to implement the United Nations Convention on the Rights of the Child and other international standards.47 Its headquarters are in New York, and it is also currently working in 155 countries around the world.48 Its rule of law tasks include providing assistance in drafting laws that address child rights; advising on justice for children and juvenile justice; providing advice and assistance related to the disarmament, demobilization, and reintegration of children associated with armed forces and armed groups; monitoring and reporting of grave violations against

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children; protection against abuse, exploitation, and violence including trafficking and sexual and gender-based violence; advising on the establishment of human rights institutions for children; and supporting child-sensitive procedures for child victims and witnesses of crimes in police stations and court.49 •

The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) focuses on the elimination of discrimination against women and girls, the empowerment of women, and the achievement of equality between women and men as partners and beneficiaries of development, human rights, humanitarian action, and peace and security.50 In addition to supporting the Commission on the Status of Women51 and holding the UN system accountable for its own commitment to gender equality, UN women helps countries implement international standards on the rights of women (e.g., the UN Convention on the Elimination of Discrimination Against Women), providing them with technical and financial support.52

•

The Peacebuilding Support Office (PBSO), among other tasks, administers the Peacebuilding Fund, which provides funding for a range of rule of law projects around the world.53 PBSO approves projects and monitors their implementation, while the funds are administered in country by UNDP’s Multi Partner Trust Office.54

C. International Organizations The UN is an international organization, meaning that it is comprised of governments from many different countries, and it is established by a treaty agreed to by these countries. Beyond the UN, there are a range of other international organizations that also provide rule of law assistance around the world. •

The International Organization for Migration (IOM)55 works for humane and orderly migration. In terms of rule of law assistance, it focuses on counter-trafficking,56 complex land and property issues, and victim reparations after conflict.57 IOM has both regional and country offices.58

•

The Organizations for Economic Cooperation and Development (OECD),59 through its Development Assistance Committee, focuses on issues of justice and security reform in developing and conflict-affected countries (although it does not have field presence in countries).60

•

Another two rule of law-focused inter-governmental organizations of note are the Institute for Democracy and Electoral Assistance (IDEA), which provides constitution-making

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assistance61 and the International Development Law Organisation (IDLO), which is committed to enabling governments and empowering people to reform laws and strengthen institutions.62 •

An important hybrid organization should be mentioned here: the International Committee of the Red Cross (ICRC).63 The ICRC is a private association under Swiss law, but its functions and activities are mandated by the international community.64 The ICRC has a mandate to visit detainees and inspect detention facilities during conflict and in situations of violence.65 It also provides prison reform assistance in conflict-affected countries.

D. Regional Organizations Regional organizations are international organizations, whose membercountries all come from a specific region. Regional organizations have become increasingly more involved in rule of law assistance. Regional organizations tend to focus their efforts on their region or countries within their membership, with the exception of the European Union, which provides rule of law assistance around the world. As part of efforts to promote the rule of law, regional organizations may conduct peacekeeping missions with the UN. Some regional organizations will undertake one-off rule of law projects, while others have in-country offices and provide rule of law assistance directly either to the government or civil society in a conflict-affected country. The European Union even has specific rule of law focused field missions in Kosovo66 and Afghanistan,67 while other missions such as the mission in Libya68 work on rule of law related issues as part of a broader mandate.69

Regional Missions Around the World

UN Peacekeeping Missions: The African Union/United Nations Hybrid employs military personnel from the African Union and the European Union Mission in the Central Africa Republic, authorized by the UN Security Council. In 1993, the Organization of American States and the UN established the International Civilian Mission to Haiti (MICIVIH), which focused in part on rule of law and human rights. In-Country Offices: The African Union has field missions in the Central African Republic and Somalia. The European Union has field offices that provide rule of law assistance in Kosovo, Afghanistan, Democratic Republic of the Congo, Libya. The Organization for Security and Cooperation in Europe has offices in its participating members countries’,

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such as Albania, Bosnia-Herzegovina, Kosovo and Serbia.  

Legislative drafting and ensuring consistency of legislation in a region, for the purpose of prosecuting transnational crimes, are important elements of rule of law assistance for some regional organizations. For example, the Commonwealth, the Organization for American States (through the Justice Studies Center of the Americas70), the Caribbean Community (CARICOM),71 and the Pacific Islands Forum (through its Secretariat72) work to provide legislative drafting assistance to their members in the area of rule of law reform. The following list is a non-exhaustive list of regional organizations that provide rule of law assistance in one form or another: •

African Regional Organizations The African Union73

•

Arab Regional Organizations The Arab League74 Organization of the Islamic Cooperation75

•

Asia-Pacific Regional Organizations Pacific Islands Forum76

•

European Regional Organizations The Council of Europe77 The European Union (EU)78 The Organization for Security and Cooperation in Europe (OSCE)79

•

Latin American Regional Organizations The Organization of American States80

•

Other The Commonwealth81 The Caribbean Community82

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E. Multilateral Development Banks (International and Regional) Multilateral Development Banks are international organizations because they are inter-governmental (comprised of a range of country member-states) in nature. The multilateral development banks provide loans and grants to developing and conflict-affected countries to promote economic development and reduce poverty. They also provide “professional advice for economic and social development activities in developing countries.”83 The growing belief that poverty can be defined broadly to include a lack of justice and rule of law,84 in addition to the belief that rule of law is necessary to support economic development and private sector development, led to the multilateral development banks engaging in rule of law assistance from the 1980’s onwards. The World Bank is the most well know of the multilateral development banks.85 Its rule of law assistance activities have expanded over the years from focusing solely on the development of state institutions and laws to working with civil society and “legal empowerment” activities. It has countryoffices in more than 100 countries.86 In addition to the World Bank, there are also regional development banks, including the Inter-American Development Bank,87 the Asian Development Bank,88 the Caribbean Development Bank,89 the European Bank for Reconstruction and Development,90 and the African Development Bank91. Both the Asian Development Bank and the African Development Bank have begun to focus on rule of law and access to justice.92 They both have offices in developing and conflict-affected countries.93

F. Bilateral Donors Countries that provide rule of law assistance directly to another country are called “bilateral donors”. Depending on the country in question, assistance can come from the Ministry of Justice (or Department of Justice), the Ministry of Foreign Affairs or its equivalent, the Ministry of Defense, or another Ministry. With most bilateral donors, there is usually more than one Ministry or Department providing assistance to a conflict-affected country. There can even be multiple offices within one Ministry or Department providing assistance (that is often not coordinated). This can be very confusing for those in country because these ministries or departments can be pursuing different approaches and have different priorities. For example, the United States has seven Cabinet level departments and twenty-eight agencies, bureaus, and offices involved in rule of law reform, from the Department of Defense to the Department of the Treasury.94

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In addition, many countries have a Ministry or Department (usually within the Ministry of Foreign Affairs) dedicated to providing development assistance. Examples of development ministries or departments that are particularly active in providing rule of law assistance are: •

United States The US Agency for International Development (USAID)95

•

United Kingdom The UK Department for International Development (DFID)96

•

Australia The Australian Agency for International Development (AUSAID)97

•

Sweden The Swedish International Development Cooperation Agency (SIDA)98

•

Belgium The Belgian Development Agency (BDA)99

•

Denmark The Danish International Development Agency (under the Danish Ministry of Foreign Affairs)100

•

Ireland IrishAid (under the Irish Department of Foreign Affairs and Trade) 101

•

Germany Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ)102

•

Switzerland The Swiss Agency for International Development and Cooperation103

•

Norway Norwegian Agency for Cooperation104

•

Japan Japan International Cooperation Agency105

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In Sweden, there is also a government agency devoted entirely to working in conflict-affected countries--the Folke Bernadotte Academy.106

Individual countries can also provide financial contributions to a UN agency to conduct rule of law projects. This is especially common with UN agencies like the UN Office on Drugs and Crime and the UN Development Programme, both of which fundraise for individual country projects.

Some bilateral donors will have their own offices in country, while others will be based at the Embassy of their home state in the country they are working in. In some cases, as will be discussed below, some bilateral donors will contract the implementation of their projects to private consulting firms, universities, or international non-governmental organizations, which may or may not have a country office.

G. International Non-governmental Organizations, Foundations, and Others Non-governmental organizations (NGOs) can be nationally focused or internationally focused. NGOs, whose mandates are not limited to a particular country, are called “international NGOs.” Each international NGO has its own area of focus. Some may be dedicated to helping provide legal assistance to poor people, while others may be focused on anti-corruption efforts, for example. Some international NGOs use the services of volunteer lawyers (e.g., Lawyers Without Borders), who have fulltime jobs in their home countries but who travel for short periods of time to conflict-affected countries to provide assistance. Other international NGOs have full-time staff. Examples of international NGOs that provide rule of law assistance include the following: •

The American Bar Association107 provides legal reform assistance with a special focus on working with lawyers and bar associations.

•

Amnesty International108 undertakes research and advocacy on human rights abuses.

•

Article 19109 works on the defense of the freedom of expression and the freedom of information.

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•

The Association for the Prevention of Torture110 focuses on upholding human rights in places of detention.

•

Avocats Sans Frontieres (Lawyers without Borders)111 provides free assistance on rule of law, capacity building, and access to justice.

•

Human Rights Watch112 undertakes research and advocacy on human rights abuses.

•

International Legal Alliances – Microjustice for All113 focuses on delivering legal assistance to the poor as well as ensuring they know their rights.

•

The International Bar Association114 seeks to shape the future of the legal profession around the world (includes a Human Rights Institute115).

•

The International Corrections and Prisons Association116 provides assistance in prison reform around the world.

•

The International Legal Foundation117 assists conflict-affected countries to set up public legal aid programs.

•

International Rehabilitation for the Victims of Torture118 focuses on the prevention of torture and the rehabilitation of torture victims.

•

International Senior Lawyers Projects119 provides volunteer legal services by senior lawyers to assist on legal reform programs.

•

No Peace Without Justice120 works on the promotion of human rights, rule of law, and international justice.

•

Penal Reform International121 works on prisons and criminal justice reform.

•

The Public Interest Law and Policy Group122 provides free legal assistance to states and governments.

•

The Peace and Justice Service (Servicio Paz y Justicia en America Latina)123 focuses on truth-finding and justice in the process of democracy building in Latin America.

It is also worth mentioning quasi-NGOs that are NGOs but also have governmental status. For example, the United States Institute of Peace is a US federal institute and an NGO.124 There are also many foundations that are working on rule of law. A

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foundation, like an NGO, is non-governmental in nature. It is established to make grants in a particular field. Foundations such as the Asia Foundation125, the Carnegie Endowment for International Peace126, the Ford Foundation,127 the MacArthur Foundation128 and the Open Society Foundations129 all fund projects related to rule of law, justice, and security. Finally, universities can also provide rule of law assistance. Universities and international non-governmental organizations may receive their funding to provide rule of law assistance from private sources like foundations. In addition, they can receive funds from bilateral donors.

H. Private Firms and Corporations With more and more money being invested into rule of law assistance, the for-profit sector saw an opportunity. Existing businesses were either expanded to include overseas rule of law assistance or businesses were established dedicated to implementing rule of law assistance projects in developing and post-conflict countries. Private firms and corporations are increasingly being used by bilateral donors to implement their rule of law projects. For example, the US Agency for International Development and the UK Department for International Development rely heavily on private firms to implement projects. These firms will go through a competitive tender process in order to win the bid for a particular project. The so-called “funder” (the bilateral donor) will specify the tasks that it wants the firm or corporation to undertake with the money it has assigned for the project. The funder will oversee the implementation of the project, and the firm will be required to report periodically on its performance. The firm may hire full-time project staff and have an office in a conflict-affected country. In the alternative, its staff may travel back and forth to the country in question. It can be quite confusing for those in country to distinguish between private firms and government agencies.

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III. The History of Rule of Law Assistance in Conflict-Affected States A. Introduction Rule of law assistance has been provided to developing and conflict-affected countries since the 1940’s during the post-World War II reconstruction. Scholars talk about the various “waves” of the rule of law movement, which will be discussed in this section.130 We are currently in the so-called fifth wave of rule of law assistance. This section will provide a historical narrative of international rule of law assistance and its focus during each successive wave.

B. The First Wave of Rule of Law Assistance (19451965) The first wave of rule of law assistance spanned from post-World War II until the middle of the 1960’s. The “modernization theory” (which would later be rejected) was the basis for this movement, in which Western countries attempted to convince developing countries to adopt Western models of law and governance so that they could progress and become “modern”. The focus of this movement was on building centralized bureaucracies and public institutions.131 During this phase, there was very little support to judiciaries, let alone to other justice institutions or civil society. During this period, United Nations “peacekeeping” was born.132 Initial peacekeeping operations did not include rule of law functions; however, in 1962, during the hand-over of power in West New Guinea from the Dutch to Indonesia, the UN was tasked with “supplementing existing Papuan police in the task of maintaining law and order.”133 The UN was also involved in reactivating the judiciary.134 In 1964, the United Nations Peacekeeping Force in Cyprus (UNFICYP) was established, wherein UN police conducted joint police patrols, police monitoring, manning certain police posts, and special investigations.135 In 1960 in the Congo (as it was then called), the UN’s law enforcement role went even further when a Ghanaian UN police contingent was deployed to fill the vacuum left by the mutiny of the domestic police force.136 In reality, UN police ended up assuming full responsibility for policing due to the inability of the Congolese police force to do so.137 In Namibia, not only did the UN presence (UNTAG) monitor police activities, it also had a law-making function under which it was empowered to repeal discriminatory laws.138 During the first wave of rule of law, the integration of rule of law activities into UN peacekeeping was not part of a grand plan. Rule of law activities came about more by default than by deliberate design. As will be discussed below, in later waves, rule of law assistance became a central component of peacekeeping operations.

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From 1948 onwards, the UN Department of Political Affairs established what are now known as Special Political Missions. While most of these missions related to the provision of high-level mediation and facilitation, the United Nations Commissioner in Libya, established in 1949, provided rule of law and constitutional assistance.139

C. The Second Wave of Rule of Law Assistance (1965late 1970’s) Rule of law assistance was provided during the second wave under the name “Law and Development,” as part of efforts to enhance economic development and democracy. The rationale behind the movement was that legal reform and development could bring about economic development and democracy.140 The second wave focused on legal and institutional reform, as well as legal education. The main actors involved in this wave were academics, particularly US academics. As part of legal education efforts, many foreign lawyers were invited to study at law schools in the United States. The “Modernization Theory” (which stated that countries would develop if they imported Western style institutions) was the theoretical basis for this movement and with that came the transplantation of Western models into developing countries in Asia, Latin America, and Africa. During the 1970’s, when the “Law and Development” movement (and the preceding first wave of rule of law assistance) were shown to have had little impact, the movement was declared dead.141 The “Modernization Theory” that the movement was built upon was also rejected. During the second wave of rule of law assistance, primarily because of the Cold War influence, no new peacekeeping operations or Special Political Missions were established that undertook rule of law functions.

D. The Third Wave of Rule of Law Assistance (19801990) In the third wave of rule of law assistance, the movement was re-named as the “Administration of Justice Movement” and it experienced a massive resurgence. US agencies and foundations were the primary international actors in this movement.142 The resurgence of international rule of law assistance was prompted by human rights abuses in Latin America. Programs of assistance or cooperation in Latin America began to spread in the 1980s,143 so much so that “[i]t became hard to take more than a few steps within the legal sector of most Latin American countries without coming across externally-funded programmes for reform or strengthening of major institutions in those sectors”.144 The movement later spread to Asia.145 It was during the 1980s that the World Bank began to take an interest in the legal systems of client countries.146

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The focus of the third wave of rule of law assistance was still on formal, state institutions. In addition, issues of judicial independence, constitutional reform, respect for civil and political rights, and criminal law were also addressed.147 Law enforcement was also a big area of focus for the international community.148 During the third wave of rule of law assistance, no new peacekeeping operations or Special Political Missions were established that undertook rule of law functions.

E. The Fourth Wave of Rule of Law Assistance (19902000) After the Cold War and the transition of many countries from dictatorship to democracy, there was a “rule of law revival”149 under the rubric of “Rule of Law Reform.” In the early 1990’s, the number of organizations and individuals engaged in international rule of law assistance grew exponentially. More government, private foundations, development banks, and international organizations became engaged. Rule of law reform was undertaken in Africa, Asia, Eastern Europe, and Latin America. The philosophical reasons underpinning why different organizations were engaged in rule of law reform varied. Some organizations like the development banks focused on rule of law because of its linkages to economic development. Other organizations sought to promote human rights, while others saw rule of law as part of efforts to build democracies. Rule of law reform, like its predecessor movements, continued to focus on formal, state institutions and laws. The movement was equally as plagued with criticisms as the previous ones and, in retrospect, there was not a great deal of successful and sustainable rule of law reforms. After the Cold War, there was great enthusiasm for the future of peace operations. Between 1990 and 2000, more than half (12 out of 21) of the peace operations in Africa were involved in rule of law assistance.150 The scope of UN rule of law activities expanded greatly in conflict-affected countries such as Angola,151 Mozambique,152 El Salvador,153 Guatamala154, Rwanda,155 Haiti,156 and Cambodia.157 Much of the rule of law assistance was provided by the human rights component of UN peacekeeping missions. Rule of law functions included police monitoring (like in Angola,158 Guatamala,159 and Mozambique160), joint patrols with domestic police (like in Mozambique161), police training (like in El Salvador162 and Haiti163), prison monitoring (like in Angola164 and Mozambique165), judicial system monitoring (like in El Salvador166), and judicial reform and institutionbuilding (like in El Salvador167 and Rwanda168). In Cambodia, where the peace agreement gave the UN some executive powers, the United Nations Transitional Authority in Cambodia (UNTAC)

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undertook even more extensive rule of law functions, engaging directly in providing law and order169 and undertaking criminal law reform.170 Going even further, under its mandate to ensure “a neutral environment for elections” under Security Council Resolution 745 (1992), the UN prosecuted, tried, and detained individuals involved in political violence.171 Similarly in Somalia, UN military forces under the Unified Task Force (UNITAF), interpreting the mandate to “use all means necessary to establish a secure environment for humanitarian relief operations,” widely and actively engaged in law enforcement functions. They drafted rules of engagement and undertook to arrest and detain individuals, who interfered with the delivery of humanitarian aid, or who threatened military forces, relief materials, distribution sites, or convoys.172 The year 1999 saw the establishment of two of the most ambitious peacekeeping operations that had ever been. In Kosovo and East Timor, acting under Chapter VII of the Charter of the United Nations, the Security Council established transitional administrations.173 In their history, no other peacekeeping operation had so totally enmeshed the UN in rule of law activities. In an unprecedented experiment, the UN assumed complete responsibility for, and control over, the justice sector in Kosovo and East Timor. UN police carried out arrests and detention of those suspected of committing crimes. UN military and later UN police maintained public order and safety in the absence of local institutions (because in both cases justice personnel from the former dictatorships, who had run the justice system, fled the country).174 International prisons staff were deployed to run the prisons in both locales and international judges and prosecutors were also deployed.175 During the 1990’s, a number of UN Special Political Missions were established. While rule of law assistance was not the central focus of these missions, in Afghanistan and Somalia the missions focused on national reconciliation issues as part of a broader UN rule of law mission that involved other UN agencies.176

F. The Fifth Wave of Rule of Law Assistance (20002014)4 In the last fourteen years, the international rule of law assistance has continued to grow and expand in both developing and conflict-affected countries. There are more organizations and individuals working on rule of law than ever before. Seeing this as a potentially lucrative field, private sector and consulting firms have added rule of law to their portfolios and more individuals are choosing international rule of law assistance as a full-time career. The events of 9/11 led to the fall of the regimes in Afghanistan and Iraq, and subsequently, significant United States and international rule of law

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assistance in both countries. Beyond Afghanistan and Iraq, 9/11 prompted a stronger counter-terrorism/countering violent extremism focus from the international community and particularly the United States. Since 2000, there has been a dramatic increase in the number of UN peacekeeping operations providing rule of law assistance in the Caribbean (Haiti177), Africa (South Sudan,178 the Ivory Coast,179 Darfur,180 Liberia,181 Mali,182 the Democratic Republic of the Congo183), and Asia (Afghanistan184), with the majority of UN peace operations engaged in rule of law assistance (19 of 24).185 In 2006 and 2008-2010, all peacekeeping operations in Africa were involved in rule of law assistance.186 The trend of focusing on justice institutions (e.g., the judiciary, law enforcement, and detention and corrections) continued,187 with law enforcement being the biggest area of focus.188 Much of the support consisted of mentoring, monitoring, and advising national justice personnel. While other UN entities, such as the United Nations Development Programme, focused on working with non-state justice mechanisms and civil society, with which for the most part, peacekeeping operations did not cooperate. The number of UN Special Political Missions also expanded in the early 2000’s. There are currently twelve country-based missions operating in Burundi,189 the Central African Republic,190 Guinea-Bissau,191 Central Africa,192 West Africa,193 Sierra Leone,194 Libya,195 Somalia,196 Central Asia,197 Iraq,198 Lebanon,199 and Israel/Palestine.200 In addition to the field missions, DPA has UN envoys or special advisors in a range of countries including Cyprus, Yemen, Myanmar/Burma, Sahel, Syria, Western Sahara, and FYROM-Greece.201 Rule of law is a central focus for many of these missions.202 In addition to focusing on rule of law reform, a number of Special Political Missions like those in Afghanistan, Guinea-Bissau, Libya, and Sierra Leone are addressing transnational organized crime, drug trafficking, and terrorism.203

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IV. Critiques of Rule of Law Assistance Overall, the results of decades of assistance have not been excellent. In fact, it is now a commonly-shared perception among scholars and practitioners that “rule of law promotion…has exhibited a poor past record of performance or achievement, and reforms all display a string of expensive disappointing experiences.”204 The International Rule of Law Community Does Not Really Know What It Is Doing The main internal critique of those providing rule of law assistance is that “deep down we don’t really know what we are doing.”205 The limited successes of the movement were the reason that, as discussed above, the “Law and Development” movement was declared dead in the 1970’s. Even today, “it is hard to boast of much success in actually fostering it [the rule of law].”206 Unaware of its own history, some believe that the rule of law movement is destined to repeat the many failures that have been documented above.207 The competency of many rule of law practitioners to provide rule of law assistance has been called into question. As one commentator noted, “the work is performed either by a small band of experts or by enthusiastic amateurs.”208 This is because very few rule of law practitioners will have been educated specifically on the rule of law. They may have gone to law school but rarely have they gone to rule of law school, although increasingly there are more Masters Degree and PhD programs dedicated to rule of law assistance. Practitioners often learn on the job, a fact that leads to a lot of mistakes along the way. The International Rule of Law Community Takes an Overly Technical Approach to Rule of Law Assistance and Ignores the Culture and Context of Conflict-Affected Countries Many have argued that the lack of success in the field has been because the rule of law community takes an overly technical approach that is focused primarily on building state institutions and drafting new laws.209 As part of this, international rule of law practitioners, in the hope of replicating a Western-style justice system, tend to follow idealization blueprints of their home systems that ignore their own difficulties and flaws.210 This type of approach fails to consider the unique cultural and political context of the country in question and what might be needed in that specific environment. The International Rule of Law Community Promotes “Best Practices” Rather than Looking for Local Solutions National stakeholders are becoming increasingly more frustrated with outside experts coming to their countries and telling them what they need to do, without a real understanding of the country or context. Some in the international rule of law community have acted in ways that disempower and

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See the INPROL Practitioners Guide on Change and Change Management for Rule of Law Practitioners that outlines an approach to searching for local solutions rather than imposing foreign best practices.

delegitimize national governments, civil society, and the local population, in addition to failing to acknowledge the wisdom that exists in that society. This “we know best” attitude is quite prevalent. One commentator aptly noted that “[t]hose on the receiving end of legal assistance are too often conceived as passive recipients of best-practice wisdom from abroad. Since the recipients…are implicitly perceived as hailing from dysfunctional legal systems, they are expected to adopt and implement willingly all changes necessary to steer their systems in the proper direction.”211 These so-called “experts” bring best practices and advice but fail to respond to the demands, concerns, and problems in the country.212 These so-called “planners” have been criticized. 213 Planners are individuals who know all the answers and trust the opinions of outside experts.214 To make matters worse, these experts get paid a lot of money for their work and “excessive expenditure on the management of projects results in less expenditure on actual project activities.”215 Contrast planners with “searchers,”216 who admit they do not know the answer and look for homegrown solutions.217 The International Rule of Law Community Takes a SupplyDriven Approach to Rule of Law Related to the last point is the critique that the international community takes a supply-driven approach to promoting the rule of law. It arrives in a conflict-affected country with pre-defined tools and approaches. Rather than responding to the demands in the country, rule of law practitioners are intent to supply the country with the projects they think are important or projects that fit into their area of expertise. Even being told “no” by those in the country does not deter them. As one national actor commented, “[i]f we say ‘no’ to a foreign donor, they just walk across the street and try to sell it to another [local agency].”218 The International Rule of Law Community Suffers from “Donor Domination Syndrome” and Tries to Lead Reforms Rather Than Facilitating Local Ownership Another critique of rule of law assistance is the so-called “donor domination syndrome,” under which donor’s external agendas dictate decisions about reform. Bilateral donors are often pursuing their own domestic policy agendas and rule of law assistance is one of the tools of foreign policy. Equally so, international organizations will have their own agendas such as promoting human rights, combating transnational crime, and so forth. One commentator noted the importance of remembering that “rule of law development aid is not a gift…It is propelled by political motivations and underpinned by economic expectations.”219 Coupled with the criticism of donor domination is the fact that these policy priorities change rapidly. One Cambodian government official lamented the annual shifts in priorities noting that there is “a focus on children one year or on women the next.”220 Governments or civil society in conflict-affected countries are then expected

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to shift their priorities in the same directions. This type of approach means that donors are leading reform rather than facilitating local ownership, a principle discussed below. Unfortunately, the international community has repeatedly violated the principle of local ownership. The breaches are often almost unbelievable: project plans designed at headquarters and pushed on national partners when the rule of law organization visits for an alleged assessment and consultation; workshops organized without any consultation with the proposed participants; and rule of law strategies drafted outside the conflict-affected countries with the expectation that the governments will adopt them wholesale. The “cultural imperialism”221 of the rule of law community and the “stunning breach of sovereignty” has been greatly criticized, 222 as well as the overall correctness of the international community “sticking its nose into other countries’ business.” 223 The International Rule of Law Community Acts in an Ad Hoc and Uncoordinated Manner Related to the donor-domination criticism, another critique of rule of law assistance is that it has been sporadic and has operated on an ad hoc basis.224 The international community has come to conflict-affected countries with its own agendas and priorities and has pushed for one-off projects that are not connected to other reform efforts or to a generally agreed upon plan or strategy. Another issue is that those within the rule of law community are not coordinated with each other. Certainly, coordination has improved significantly in the last ten years or so; however, the international community is still notoriously bad at coordinating its efforts. “Despite high-level meetings where cooperation and coordination is promised, with a few notable exceptions, in-country donor cooperation at its best means staying out of each other’s way. At worst, it begins to look like the dark side of political campaigns, high-stakes sports matches.”225 The International Rule of Law Community is Untrustworthy and Dishonest Other criticisms of the international rule of law community from national stakeholders are that they are untrustworthy and dishonest.226 Outside actors often expect to be immediately trusted when they should in fact “expect mistrust and should not assume that their role as interveners is understood and welcomed.”227 A lack of trust in outsiders will likely be prevalent in a post-dictatorship situation because dictators use the threat of external enemies to expand or continue domination.228 Even though a dictator may be gone, the deep suspicion of foreigners that was ingrained into the population is still ever-

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present. People may also resent and lack trust in the international community that they have seen as standing by during the conflict and allowing human rights violations to occur. In addition, where local populations have experienced foreign assistance over many years, particularly when the country has plummeted back into conflict during this time, there will be an obvious lack of trust of the international community. 229 Another challenge with trust building is the fact that many rule of law practitioners are only in country for short periods of time if they are based in another country, or if they are based in the conflict-affected country they leave after six months to a year. The lack of continuity of staff members makes building trust difficult. The International Rule of Law Community is Opaque and Culturally Insensitive The perception of dishonesty230 of the international community may be linked to its lack of transparency of actions. Local populations rarely know what international organizations are doing and why they are in their country and the international community needs to do a better job of conveying this information. Finally, the international rule of law community is also seen as being culturally insensitive,231 which leads to a working relationship with a national partner being destroyed before it has even begun.

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V.

Guiding Principles for the International Rule of Law Community Based on the failures of the various rule of law waves and the critiques of rule of law assistance from national actors and from within the rule of law community, in the 2000’s, the international community began to develop sets of principles to guide the work of rule of law organizations and practitioners, like ethical standards attorneys must abide by. While these standards are a positive step forward, unlike a lawyer who may be fined or have his or her license to practice taken away for breaching the ethical code, for rule of law practitioners there are no consequences to breaching the international principles on rule of law promotion. That said, they are important standards that can be informally enforced by national stakeholders and those within the international rule of law community. Not all organizations have a guiding set of principles, but there are a number of important standards that have been elaborated that can serve as inspiration for the entire rule of law community and its practitioners. In 2004, the United Nations issued the Guidance Note on the UN Approach to Rule of Law232, containing eight principles that apply to the work of all UN agencies and entities. Organized by the Organization for Economic Cooperation and Development, in 2005 a group of Ministers from developed and developing countries came together to draft the Paris Declaration on Aid Effectiveness233 that contained five key principles that apply to both countries giving aid and those receiving aid. The Accra Agenda for Action was the follow-up statement to the Paris Principles in 2008.234 Both the Paris Principles and the Accra Agenda were drafted more for use in developing rather than conflict-affected countries. In 2007, at the instigation of the Organization for Economic Cooperation and Development, the Principles for Good International Engagement in Fragile States and Situations was drafted for such environments.235 The principles developed to regulate the behavior of the international rule of law community do not cover all the criticisms outlined above but they represent an important starting point. Even though not every organization or donor country has its own set of standards that does not mean they should not be following internationally agreed upon principles for how to provide rule of law assistance. What follows are a number of minimum standards or guidelines that apply to conflict-affected countries, as follows: •

Base assistance on the unique country context;

•

Take into account the political context of the country;

•

Ensure national/local ownership of rule of law strategies;

•

Ensure a strategic approach to reform;

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•

Base assistance on international norms and standards;

•

Ensure coordination of the international rule of law community; and

•

Measure the impact of rule of law assistance.

A. Base Assistance on the Unique Country Context

See the INPROL Practitioners Guide on Change and Change Management for Rule of Law Practitioners that outlines an approach to rule of law reform that is context-specific and responsive to each individual conflictaffected country, and how to manage the political dimensions of rule of law reform.

Too often, the rule of law community has come to a conflict-affected country with preconceived ideas about the country, its problems, and solutions to those problems. Instead, what is appropriate is that they take their time to understand the legal, political, social, and historical context, as well as the problems it is facing--recognizing of course that it is not possible for a foreigner living in a foreign country to understand this fully in a short period of time. Another aspect of this principle is ensuring that “blue-print approaches,” “one-size-fits-all approaches,” and “best practice approaches” are not adopted.236 Instead a nuanced and empirically-based approach should be adopted that is responsive to the particular context.237

B. Take Into Account the Political Context of the Country For many years, the rule of law community perceived rule of law reform as a purely legal and technical exercise. Rule of law practitioners divorced themselves from the political implications of proposed reforms and failed to analyze what were the potential winners and losers in reform. Rule of law is inherently political and should be approached as such. The Guidance Note on the UN Approach to Rule of Law notes “the need for more emphasis on political and strategic considerations rather than justice technical ones.”238

C. Ensure National/Local Ownership of Rule of Law Strategies The idea that the government, civil society, and the population of a conflictaffected country should own and lead rule of law reform seems incredibly self-evident. In an inter-personal context, while we can support it, we cannot own another person’s change. The same goes for societal change: outsiders cannot own another country’s change process. When outsiders try to impose change on a country, they are not respecting the dignity of the people.239 Nor are they respecting their rights and abilities to “exercise constructive control and ownership of processes that affect them.”240 Furthermore, not allowing people to own their change process takes away the freedom that they fought so hard for, not to mention that imposing outside solutions violates the rule of law, which requires popular participation in decision-making. Ultimately,

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when ownership is not respected, positive and sustainable change is unlikely. The Guidance Note on the UN Approach to Rule of Law acknowledges this reality: “no rule of law programme can be successful in the long term if imposed from the outside.”241 It requires that all process leadership and decision-making should be in the hands of national stakeholders. It further states that support and participation of stakeholders should be full and meaningful and the process should be transparent.242 International actors must “support and empower national reform constituencies”. An attitude of “solidarity and not substitution” must prevail.243 It should be noted that local ownership is not violated only when outsiders take over or pressure national partners to adopt a certain policy or reform program. It is also violated when there is apparent consent but “the power imbalance is too great for the target country to have full agency and ownership over its decision,”244 meaning the international organization or donor country has more power than the recipient country (e.g., the donor country has money to contribute and the recipient country needs that money) and the recipient country feels compelled to comply. The excuse that is given for violating national ownership is the emergency nature of a post-conflict setting and the need to “get things done.” In the trade-off between local ownership and efficiency, unfortunately efficiency has previously always won.245

D. Ensure a Strategic Approach to Reform To avoid the ad hoc approach outlined above, rule of law organizations are encouraged to base their assistance on national strategies. That strategy could be a national strategy (e.g., a National Development Plan or a Poverty Reduction Strategy Paper), a sectoral strategy (e.g., a justice sector reform strategy, a health care system strategy), an institutional strategy (e.g., the strategic plan for the courts, prisons, police, etc.) or a thematic strategy (e.g., a strategy for addressing organized crime). In conflict-affected countries, there may be no such strategies. If there are no strategies in place, the international community can support their development by assisting in national capacity development on how to conduct, implement, and monitor strategic planning.

National Development Plan A National Development Plan is a strategy document that sets out the government's policy objectives for realizing its development goals over a finite period of time. “The objective of development, and therefore a National Development Plan, is to create an enabling environment for people to enjoy long,

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healthy and creative lives." - Mahbub ul Haq, 1934-1998, founder of the Human Development Report*1 Poverty Reduction Strategy Paper In September 1999, the World Bank Group and the International Monetary Fund (IMF) endorsed proposals that Poverty Reduction Strategy Papers (PRSPs)*2 be prepared in all low income countries receiving concessional lending from the two institutions. Countries would also need at least an interim PRSP before they could access debt relief under the Enhanced Heavily Indebted Poor Countries (HIPC2) facility; they would be entitled to final, irrevocable relief once they had a full PRSP in place and had implemented agreed poverty reduction actions. The Poverty Reduction Strategy idea builds on and operationalizes the World Bank's Comprehensive Development Framework (CDF). This embodies a new approach to poverty reduction and to partnership between governments and donors, which it is hoped will lead to more effective policies for attacking poverty and hence more effective aid. Sources: "Human Development Reports." About Human Development. 2015. Accessed May 1, 2015. http://hdr.undp.org/en/humandev. *1

See, "Poverty Reduction and Debt Relief for Low-Income Countries." International Monetary Fund. 2001. Accessed May 1, 2015. https://www.imf.org/external/pubs/ft/ar/2001/eng/pdf/file3.pdf. *2

The Principles for Good International Engagement in Fragile States and Situations notes that where it is not possible to align behind a government strategy because of weak governance or violent conflict, the international community should consult with a wide range of stakeholders and seek opportunities for partial alignment.246

E. Base Assistance on International Norms and Standards The rule of law principle requires that all laws must comply with “international human rights norms and standards.” Flowing from this, the United Nations Guidance Note on the UN Approach to Rule of Law requires that UN assistance be based on international norms and standards. The Principles for Good International Engagement in Fragile States and Situations emphasize the promotion of non-discrimination (itself a human right),247 noting that the international community should “promote gender equity, social inclusion and human rights” and should promote “the voice and

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participation of women, youth, minorities and other excluded groups.”248

F. Ensure Coordination of the International Rule of Law Community Coordination is necessary between the different ministries or agencies from the same country providing assistance to a conflict-affected country; within the UN; and among various organizations and donors working in a conflictaffected country. Coordination should also be undertaken with national partners as well. Without coordination, it is a free-for-all with every organization focusing on its own projects without taking account of the bigger picture. Without coordination, duplication and redundancy of projects are also very likely. The Principles for Good International Engagement in Fragile States and Situations note the importance of agreeing on practical coordination mechanisms between international actors.249 The United Nations Guidance Note on the UN Approach to Rule of Law reinforces this noting, “successful rule of law assistance requires the support and active engagement of all stakeholders working through a comprehensive strategy in a coordinated fashion.”250 In an ideal world, a national representative would co-chair the coordination mechanism and there would be a nationally agreed upon strategy that all international actors could coordinate around. However, if this is not possible, coordination should still be done in the absence of strong government leadership.251 Usually, the UN Deputy Secretary-General for Rule of Law or the UN Resident Coordinator will chair or co-chair the international coordination mechanism. As well as sharing information on activities each organization is undertaking, the international community should coordinate on country analysis and assessments and the coordination of political engagement.252 Other coordination arrangements include joint donor offices and multi donor trust funds, discussed above.

G. Measure the Impact of Rule of Law Assistance International rule of law organizations need to be able to measure the success (or lack of success) of their assistance. In the last number of years, the requirement to “monitor and evaluate” projects has been enforced by rule of law organizations around the world. A comprehensive explanation of monitoring and evaluation is beyond the scope of this guide. The requirement to monitor and evaluate means rule of law organizations need to create a plan before a project commences for measuring the impact of its work, and then continuously--and at certain defined junctures--ascertain

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whether the planned impact is being achieved. Monitoring and evaluation requires the gathering of baseline data about the situation before the project begins so that it may be compared to data gathered after the completion of the project–thus, it must be thought of in advance of project implementation.

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VI. A New and Emerging Approach to Rule of Law Assistance At this current juncture in the history of rule of law assistance, there is somewhat of a split in the rule of law community based on different ideologies and approaches. Rachel Kleinfeld talks about “first generation reformers” and “second generation reformers.”253 First-generation reformers are those who focus on formal laws and state institutions as the vehicle for promoting the rule of law. They see their work as a technical endeavor requiring legal, technical expertise. They like to work with legal professionals and government officials. They see themselves as “experts” with the answers, bringing valuable experiences, models, and “best practices” from developed countries to conflict-affected countries. While not overtly saying so, they are acting under the influence of the “Modernization Theory” that was so prevalent in the first wave of rule of law assistance, and they are unconsciously promoting an approach that recreates Western style institutions and approaches to rule of law. These experts are interested in telling national actors what to do rather than helping them find their own answers. They are taking the exact same approach that was taken in the first four waves of rule of law assistance--an approach that did not work. So, the critiques leveled against the rule of law community are really directed at those first generation reformers. In contrast, there is another group of rule of law practitioners, who are transforming the way rule of law assistance is being provided. This rule of law space is not dominated by lawyers but values cross-disciplinary approaches to rule of law and brings in the expertise of (national and international) psychologists, sociologists, political scientists, historians, anthropologists, to name a few. They also value empirical approaches to rule of law, where empirical data is gathered from citizens and used to give them a voice in the policy debate, in addition to being used to measure the success of a particular rule of law reform. They focus on a process based approach to rule of law. They eschew “best practices,” “legal transplantation,” and “one-size-fits-all” responses in favor of approaches that empower local populations to define and solve the rule of law issues they are facing. Context, culture, relationships, politics, and power are important considerations rather than just legal and technical considerations. There is also recognition of the importance of engaging beyond the formal, state justice system and laws to support the work of local communities and civil society. While many of the second generation reformers may be required to pursue a specific, foreign policy agenda or institutional priority, they work to find win-win approaches with those in conflict-affected countries in delivering rule of law assistance. Importantly, they see themselves not as experts but as supporters and facilitators of processes where citizens can come together to identify their problems and find solutions. They also play a role in providing comparative

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examples and possibilities254 from other countries. This is done in the spirit of sharing information that can be debated, discussed, and adapted, if it is seen as relevant for the country in question rather than sharing solutions that must be implemented. Leading thinker on rule of law, Amartya Sen, notes the importance of engaging views beyond those held by members of a particular society because it can broaden the perspective of national stakeholders.255 It will be interesting to observe the international rule of law community over the coming years to see whether this more novel approach to rule of law–that seeks to actually learn from the mistakes of the past and do something different--will be adopted more generally by the rule of law community. Only time will tell.

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VII. Endnotes                                                                                                                 Veronica L. Taylor, “The Rule of Law Bazaar,” Rule of Law Promotion: Global Perspective, Local Applications, (Uppsala, Sweden: Iustus Forlag, 2009), 325, 327. 2 United Nations Rule of Law, “About: UN Engagement,” accessed December 29, 2014, http://www.unrol.org/article.aspx?article_id=4. 3 United Nations Rule of Law, accessed December 29, 2014, http://www.unrol.org. 4 Ibid. 5 See e.g., United Nations Office of the High Commissioner for Human Rights, “Our Work in the Field,” accessed December 29, 2014, http://www.ohchr.org/EN/Countries/Pages/WorkInField.aspx. 6 United Nations, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on Jan. 31, 1992, U.N. Doc. A/47/277-S/24111 (1992), para. 46.) 7 United Nations, Department of Political Affairs, Policy and Mediation Division, Special Political Missions Start-up Guide 2012 (New York, 2012), 21. 8 See United Nations Rule of Law, “Rule of Law Coordination and Resource Group,” accessed December 29, 2014, http://www.unrol.org/article.aspx?article_id=6. 9 United Nations Rule of Law, “Rule of Law Unit,” accessed December 29, 2014, http://www.unrol.org/article.aspx?article_id=7. 10 See United Nations Development Programme and Department of Peacekeeping, Fact Sheet: Global Focal Point for Police, Justice and Corrections (New York: United Nations, 2012). 11 "About MPTF Office Funds – Joint Programming." About MPTF Office Funds. 2003. Accessed May 1, 2015. http://mptf.undp.org/overview/funds/jp. 12 For a full list of joint programs, see United Nations Development Program, Multi-Partner Trust Fund Office, “Funds and Joint Programmes,” accessed December 29, 2014, http://mptf.undp.org/portfolio/fund?fund_type=j. 13 "About MPTF Office Funds - Multi-Donor Trust Funds." About MPTF Office Funds. 2003. Accessed May 1, 2015. http://mptf.undp.org/overview/funds/what. 14 United Nations, Special Political Missions Start-up Guide 2012, 41. 15 United Nations Development Group, “Resident Coordinators,” accessed December 29, 2014, http://www.undg.org/unct.cfm?module=CountryTeams&page=RcEmailRep ort. 16United Nations Development Group, “Joint Offices,” accessed December 29, 2014, http://www.undg.org/content/un_reform_and_coherence/joint_offices. 17 United Nations Interoffice Memorandum, Decision No. 2008/24, “Decision of the Secretary-General – 25 June Meeting of the Policy Committee,” June 26, 2008, http://www.undg.org/docs/9898/Integrationdecision-SG-25-jun-08.pdf. 18 United Nations Office in Burundi, accessed December 29, 2014, http://bnub.unmissions.org. 1

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                                                                                                                                                                                                                                                                      United Nations Integrated Peacebuilding Office in the Central African Republic, accessed December 29, 2014, http://binuca.unmissions.org. 20 United Nations Integrated Peacebuilding Office in Guinea-Bissau, accessed December 29, 2014, http://www.uniogbis.unmissions.org. 21United Nations Regional Office for Central Africa, accessed December 29, 2014, http://unoca.unmissions.org. 22 United Nations Office for Western Africa, accessed December 29, 2014, http://unowa.unmissions.org. 23 United Nations Integrated Peacebuilding Office in the Sierra Leone, accessed December 29, 2014, http://unipsil.unmissions.org. 24 United Nations Support Mission in Libya, accessed December 29, 2014, http://unsmil.unmissions.org. 25 United Nations Assistance Mission in Somalia, accessed December 29, 2014, http://www.unsom.unmissions.org. 26 United Nations Regional Centre for Preventive Diplomacy for Central Asia, accessed December 29, 2014, http://unrcca.unmissions.org. 27 United Nations Iraq, accessed December 29, 2014, http://www.uniraq.org/index.php?lang=en. 28 Office of the United Nations Special Coordinator for Lebanon, accessed December 29, 2014, http://unscol.unmissions.org. 29 Permanent Observer Mission of the State of Palestine Mission to the United Nations, accessed December 29, 2014, http://palestineun.org; Permanent Mission of Israel to the United Nations, accessed December 29, 2014, http://embassies.gov.il/un/Pages/default.aspx. 30 United Nations, Department of Political Affairs, Field Operations and Good Office Missions, accessed December 29, 2014, https://www.un.org/wcm/content/site/undpa/main/about/field_operations . 31 United Nations Rule of Law, Department of Political Affairs, accessed December 29, 2014, http://www.unrol.org/article.aspx?article_id=9. 32 Ibid. 33 Ibid. 34 See United Nations, Department of Peacekeeping Operations, accessed December 29, 2014, https://www.un.org/en/peacekeeping/about/dpko/. 35 United Nations Office of the High Commissioner for Human Rights, “What We Do,” accessed December 29, 2014, http://www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx. 36 United Nations Office of the High Commissioner for Human Rights, “Map of OHCHR Field Presences,” accessed December 29, 2014, http://www.ohchr.org/EN/Countries/Pages/MapOfficesIndex.aspx. 37 Ibid. 38 Ibid. 39 UN OHCHR, “What We Do.” 40 Ibid. 41 Ibid. 42 Mahbub ul Haq (1934-1998), founder of the Human Development Report) (http://hdr.undp.org/en/humandev) Service. 43 United Nations Rule of Law, United Nations Development Programme, accessed December 29, 2014, http://www.unrol.org/article.aspx?article_id=13. 44 Ibid. 19

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                                                                                                                                                                                                                                                                      United Nations Office on Drugs and Crime, “Field Offices,” accessed December 29, 2014, http://www.unodc.org/unodc/fieldoffices.html?ref=menutop. 46 United Nations Office on Drugs and Crime, “About,” accessed December 29, 2014, http://www.unodc.org/unodc/en/aboutunodc/index.html?ref=menutop. 47 United Nations Rule of Law, United Nations Children’s Fund, accessed December 29, 2014, http://unrol.org/article.aspx?article_id=15. 48 Ibid. 49 Ibid. 50 United Nations Rule of Law, United Nations Women, accessed December 29, 2014, http://unrol.org/article.aspx?article_id=16. 51 UN Women, accessed December 29, 2014, http://www.un.org/womenwatch/daw/csw/index.html#about. 52 Ibid. 53 United Nations Peacebuilding Support Office, accessed December 29, 2014, http://www.un.org/en/peacebuilding/pbso/. 54 United Nations Development Program, Multi-Partner Trust Fund Office, accessed December 29, 2014, http://mptf.undp.org. 55 See International Organization for Migration, accessed December 29, 2014, https://www.iom.int/cms/en/sites/iom/home.html. 56 International Organization for Migration, Counter-Trafficking, accessed December 29, 2014, https://www.iom.int/cms/countertrafficking. 57 See International Organization for Migration, International Organization for Migration in Land and Property Rights and Victim Reparations (Geneva: International Organization for Migration, 2013). 58 See International Organization for Migration, International Organization for Migration Field Locations, May 2012, (Geneva: International Organization for Migration, 2012). 59 The Organisation for Economic Co-operation and Development, accessed December 29, 2014, http://www.oecd.org. 60 International Committee of the Red Cross, accessed December 29, 2014, http://www.icrc.org/eng/. 61 Institute for Democracy and Electoral Assistance, accessed December 29, 2014, http://www.idea.int. 62 International Development Law Organization, accessed December 29, 2014, http://www.idlo.int. 63 International Committee of the Red Cross. 64 See Gabor Rona, “The ICRC’s Status: In a Class of its Own” (ICRC Resource Centre, February 17, 2004), http://www.icrc.org/eng/resources/documents/misc/5w9fjy.htm. 65 International Committee of the Red Cross, “Visiting Detainees,” accessed December 29, 2014, http://www.icrc.org/eng/what-we-do/visitingdetainees/index.jsp. 66 European External Action Service, EULEX Kosovo, accessed December 29, 2014, http://www.eeas.europa.eu/csdp/missions-and-operations/eulexkosovo/index_en.htm. 67 European External Action Service, EUPOL Afghanistan, accessed December 29, 2014, http://www.eeas.europa.eu/csdp/missions-andoperations/eupol-afghanistan/index_en.htm. 45

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                                                                                                                                                                                                                                                                      European External Action Service, EUBAM Libya, accessed December 29, 2014, http://www.eeas.europa.eu/csdp/missions-and-operations/eubamlibya/index_en.htm. 69 For a list of past EU missions, see European External Action Service, Completed Missions and Operations, accessed December 29, 2014, http://www.eeas.europa.eu/csdp/missions-andoperations/completed/index_en.htm. 70 Justice Studies Center of the Americas, accessed December 29, 2014, http://www.cejamericas.org. 71 Caribbean Community Secretariat, accessed December 29, 2014, http://www.caricomlaw.org. 72 Pacific Islands Forum Secretariat, accessed December 29, 2014, http://www.forumsec.org/pages.cfm/political-governancesecurity/legislative-drafting/. 73 "Home | African Union." Home | African Union. 2015. Accessed May 13, 2015. 74 "The Arab League." ‫ﺍاﻝلﻉعﺭرﺏبﻱيﺓة ﺍاﻝلﺩدﻭوﻝل ﺝجﺍاﻡمﻉعﺓة‬. 2015. Accessed May 1, 2015. 75 "Organisation of Islamic Cooperation." Organisation of Islamic Cooperation. 2015. Accessed May 1, 2015. 76 "Home - Pacific Islands Forum." Pacific Islands Forum. Accessed May 1, 2015. http://www.forumsec.org/. 77 "Conseil De L'Europe - 820 Millions De Citoyens - 47 états Membres Conseil De L'Europe." Conseil De L'Europe - 820 Millions De Citoyens - 47 états Membres - Conseil De L'Europe. 2015. Accessed May 1, 2015. 78 "Official Website of the European Union." EUROPA. 2015. Accessed May 1, 2015. 79 "OSCE." Organization for Security and Co-operation in Europe. 2015. Accessed May 1, 2015. 80 "Organization of American States - Home." OAS. 2015. Accessed May 13, 2015. 81  "The Commonwealth." The Commonwealth. 2015. Accessed May 1, 2015.   82  "CARICOM Law - Home." CARICOM Law - Home. 2015. Accessed May 1, 2015. 83 See The World Bank, Affiliates, accessed December 29, 2014, http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,content MDK:20040612~menuPK:8336267~pagePK:51123644~piPK:329829~theSit ePK:29708,00.html. 84 See e.g., Deepa Narayan, Raj Patel, Kai Schafft, Anne Rademacher, Sarah Koch-Schultz, Can Anyone Hear Us? Voices of the Poor (New York: Oxford University Press, 2002). 85 See The World Bank, accessed December 29, 2014, http://www.worldbank.org. 86 For a full list of country offices and contact information, see The World Bank, “Contacts,” accessed December 29, 2014, http://www.worldbank.org/en/about/contacts. 87 Inter-American Development Bank, accessed December 29, 2014, http://www.iadb.org/en/inter-american-development-bank,2837.html. 88 Asian Development Bank, accessed December 29, 2014, http://www.adb.org. 89 Caribbean Development Bank, accessed December 29, 2014, http://www.caribank.org. 68

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                                                                                                                                                                                                                                                                      European Bank for Reconstruction and Development, accessed December 29, 2014, http://www.ebrd.com/pages/homepage.shtml. 91 African Development Bank Group, accessed December 29, 2014, http://www.afdb.org/en/. 92 See Dimitra Manou, Assessing the Role of Multilateral Development Banks in the Legal Empowerment of the Poor (Montreal: Centre for International Sustainable Development Law, 2012); Asian Development Bank, Strategy 2010: The Long-Term Strategic Framework of the Asian Development Bank 2008-2020 (Manila: Asian Development Bank, 2008). See also African Development Bank, African Development Fund, Bank Group Policy on Poverty Reduction (2004). 93 See ibid. 94 Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Washington, D.C.: Carnegie Endowment for International Peace, 2012), 21-22. 95United States Agency for International Development, accessed December 29, 2014, http://www.usaid.gov. 96 United Kingdom Department for International Development, accessed December 29, 2014, https://www.gov.uk/government/organisations/department-forinternational-development. 97 Australian Government Department of Foreign Affairs and Trade: Aid, accessed December 29, 2014, http://aid.dfat.gov.au/Pages/home.aspx. 98Swedish International Development Cooperation Agency, accessed December 29, 2014, http://www.sida.se/english/. 99 Belgian Development Agency, accessed December 29, 2014, http://www.btcctb.org. 100 Ministry of Foreign Affairs of Denmark: Danida, accessed December 29, 2014, http://um.dk/en/danida-en/. 101 Ireland Department of Foreign Affairs and Trade: Irish Aid, accessed December 29, 2014, https://www.irishaid.ie. 102Deutsche Gesellschaft für Internationale Zusammenarbeit, accessed December 29, 2014, http://www.giz.de/en/html/about_giz.html. 103Swiss Agency for Development and Cooperation, accessed December 29, 2014, http://www.sdc.admin.ch. 104Norwegian Agency for Development Coordination, accessed December 29, 2014, http://www.norad.no. 105Japan International Cooperation Agency, accessed December 29, 2014, http://www.jica.go.jp/english/index.html. 106 Folke Bernadotte Academy, accessed December 29, 2014, https://www.fba.se/en/. 107 American Bar Association, Rule of Law Initiative, accessed December 29, 2014, https://www.americanbar.org/advocacy/rule_of_law.html. 108 Amnesty International, accessed December 29, 2014, http://www.amnesty.org. 109 Article 19, accessed December 29, 2014, http://www.article19.org. 110 Association for the Prevention of Torture, accessed December 29, 2014, http://www.apt.ch. 111 Lawyers Without Borders, accessed December 29, 2014, http://www.lwob.org/Pages/Default.aspx. 112 Human Rights Watch, accessed December 29, 2014, http://www.hrw.org. 90

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INPROL - International Network to Promote the Rule of Law  

                                                                                                                                                                                                                                                                      Micro Justice 4 All, accessed December 29, 2014, http://microjustice4all.org/site/. 114 International Bar Association, accessed December 29, 2014, http://www.ibanet.org. 115International Bar Association, Human Rights Institute, accessed December 29, 2014, http://www.ibanet.org/IBAHRI.aspx. 116 International Corrections and Prisons Association, accessed December 29, 2014, http://www.icpa.ca. 117 International Legal Foundation, accessed December 29, 2014, http://theilf.org. 118 International Rehabilitation Council for Torture Victims, accessed December 29, 2014, http://www.irct.org. 119 International Senior Lawyers Project, accessed December 29, 2014, http://www.islp.org. 120 No Peace Without Justice, accessed December 29, 2014, http://www.npwj.org. 121 Penal Reform International, accessed December 29, 2014, http://www.penalreform.org. 122Public International Law and Policy Group, accessed December 29, 2014, http://publicinternationallawandpolicygroup.org. 123 Peace and Justice Service, accessed December 29, 2014, http://www.serpaj.org. 124 United States Institute of Peace, accessed December 29, 2014, www.usip.org. 125 The Asia Foundation, accessed December 29, 2014, http://asiafoundation.org. 126Carnegie Endowment for International Peace, accessed December 29, 2014, http://carnegieendowment.org/#/slide_611_what-west-must-do-forukraine. 127 Ford Foundation, accessed December 29, 2014, http://www.fordfoundation.org. 128 MacArthur Foundation, accessed December 29, 2014, http://www.macfound.org. 129Open Society Foundations, accessed December 29, 2014, http://www.opensocietyfoundations.org/issues/rights-justice. 130 See Eric Jensen, “The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformer’s Responses,” in Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford: Stanford University Press, 2003), 336. 131 Ibid., 336, 346. 132 Peacekeeping has been defined as “the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well. Peace-keeping is a technique that expands the possiblities for both the prevention of conflict and the making of peace.” United Nations General Assembly, “An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the SecretaryGeneral Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992,” UN/A/47/277-S/24111, June 17, 1992, ¶ 46, http://www.un.org/ga/search/view_doc.asp?symbol=A/47/277. 133 United Nations General Assembly, No. 6311, Agreement Between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West 113

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INPROL - International Network to Promote the Rule of Law  

                                                                                                                                                                                                                                                                      New Guinea (West Irian), August, 15, 1962, article VII, https://treaties.un.org/doc/Publication/UNTS/Volume%20437/volume437-I-6311-English.pdf. 134 See United Nations Department of Peacekeeping Operations, West New Guinea-UNSF: Background, accessed December 29, 2014, http://www.un.org/en/peacekeeping/missions/past/unsfbackgr.html. 135 See Duncan Chappell and John Evans, “The Role, Preparation and Performance of Civilian Police in United Nations Peacekeeping Operations” (unpublished U.N. document, 1997). 136 Ibid., 18. 137 See United Nations, The Blue Helmets: A Review of United Nations Peace-keeping, 3rd ed. (New York: United Nations Department of Public Information, 1996), 181. 138 For a discussion of this role, see ibid., 224-25. 139 United Nations, United Nations Political Missions: Report of the Secretary General, 4. 140 Jensen, “The Rule of Law and Judicial Reform,” 336, 346. 141 David M. Trubek and Marc Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” Wisconsin Law Review 4 (1974): 1062. 142 Jensen, “The Rule of Law and Judicial Reform,” 336, 347. 143 Thomas Carothers, “The Many Agendas in Rule of Law Reform in Latin America,” in Rule of Law in Latin America: The International Promotion of Judicial Reform (London: Institute of Latin American Studies, 2001), 4. 144 Ibid. 145 Jensen, “The Rule of Law and Judicial Reform,” 336, 347. 146 Stephen Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice (Cambridge: Cambridge University Press, 2012), 130. 147 Jensen, “The Rule of Law and Judicial Reform,” 336, 347. 148 Humphreys, Theatre of the Rule of Law, 125. 149 Thomas Carothers, “The Rule of Law Revival,” Foreign Affairs 77(2) (1998). 150 Richard Zajac Sannerholm, Securitization, Sectorisation and Goal Displacement: Rule of Law Assistance in UN Peace Operations (February 11, 2013), 4, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2214854. 151 Lusaka Protocol Between the Government of Angola and the Uniao Nacional Para a Indepedencia Total de Angola, November 15, 1994, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/lusaka_11151994.pdf. This peace operation to Angola, mandated to assist in the implementation of the Lusaka, the United Nations Angola Verification Mission (UNAVEM III) was the third peace operation to Angola since 1989. The first, the United Nations Angola Verification Mission (UNAVEM) was a military observer group, established under Security Council Resolution No. 435 (1978), become operational in 1989 and was a typical peacekeeping-type operation, with no civilian, component. UNAVEM II, established under Security Council Resolution No. 696 (1991) had a similar mandate but had both military and police observers. Its mandate was limited to verifying the implementation of the ceasefire and the establishment of a joint army. UNAVEM III, on the other hand, had a strong civilian component that undertook rule of law related tasks. UNAVEM III was succeeded by the United Nations Observer Mission in Angola (MONUA),

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                                                                                                                                                                                                                                                                      an operation similar in scope and functions that was established by Security Council Resolution No. 1118 (1997). 152 General Peace Agreement for Mozambique, October 4, 1992, reprinted in The United Nations and Mozambique 1992-1995, United Nations Blue Books Series, vol. 5 (New York: United Nations, Department of Public Information, 1995), 105. 153 Agreement on Human Rights, July 26, 1990; Mexico Agreements, April 27, 1991; and New York Agreement, September 25, 1991, reprinted in The United Nations and El Salvador 1990-1995, United Nations Blue Book Series, vol. IV (New York: United Nations, Department of Public Information, 1995), 167, 159, 108, respectively. 154 Comprehensive Agreement on Human Rights, March 29, 1994, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/guat_hr_940329.pdf. 155 Peace Agreement Between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, August 4, 1993, www.incore.ulst.ac.uk/services/cds//agreements/pdf/rwan1.pdf. 156 Governor’s Island Agreement, 1993, www.globalsecurity.org/military/library/report/1998/kretchikappendixd.htm. The Governor’s Island Agreement was the impetus for the establishment of the United Nations Mission in Haiti (UNMIH) that ran from 1993 to June 1996, concomitantly with a joint UN-Organization of American States mission called the International Civil Mission in Haiti (MICIVIH). For a discussion of MICIVIH’s rule of law activities, see Colin Granderson, “Institutionalizing Peace: The Haiti Experience,” in Honouring Human Rights: From Peace to Justice, Recommendations to the International Community (Washington, D.C.: The Aspen Institute, 1998), 227. UNMIH was later succeeded by the United Nations Support Mission in Haiti (UNSMIH), from July 1996 to July 1997; the United Nations Transition Mission in Haiti (UNTMIH), from August to November 1997; and the United Nations Civilian Police Mission in Haiti (MIPONUH), from December 1997 to March 2000. MIPONUH was then followed by a General Assembly mandated peace operation, the International Civilian Support Mission in Haiti (MICAH). A new peace operation, mandated by the Security Council, the United Nations Stabilization Mission in Haiti (MINUSTAH) was established in April 2004. 157 Final Act of the Paris Conference on Cambodia, October 23, 1991, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/final_act_10231991.pdf; Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, October 23, 1991, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/agree_comppol_10231991.pdf; Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia, October 23, 1991, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/agree_sovereign_10231991.pdf. 158 See Lusaka Protocol, Annex 5, II: Specific Principles (1). 159 See Comprehensive Agreement on Human Rights, ¶ 19. 160 Comprehensive Agreement on Human Rights, ¶ 19. See also Andrew Clapham and Florence Martin, “Smaller Missions Bigger Problems,” in Honouring Human Rights: From Peace to Justice, Recommendations to the

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                                                                                                                                                                                                                                                                      International Community (Washington, D.C.: The Aspen Institute, 1998), 140. 161 See ibid. 162 For a full discussion of ONUSAL’s role in building a New El Salvadorian Police Force, see William Stanley and Robert Loosle, “El Salvador: The Civilian Police Component of Peace Operations,” in Policing the New World Disorder: Peace Operations and Public Security (Washington, D.C.: National Defense University Press, 1998). 163 Governor’s Island Agreement, 1993. See also Security Council Resolution No. 975, January 30, 1995, ¶ 6, http://daccess-ddsny.un.org/doc/UNDOC/GEN/N95/028/26/PDF/N9502826.pdf?OpenElem ent. 164 Regarding the establishment of the United Nations Observer Mission in Angola (MONUA), see Security Council Resolution No. 1118, June 30, 1997, http://daccess-ddsny.un.org/doc/UNDOC/GEN/N97/178/44/PDF/N9717844.pdf?OpenEleme nt. 165 See also Clapham and Martin, “Smaller Missions Bigger Problems,” 140. 166 See Agreement on Human Rights, July 26, 1990, ¶ 10-14, http://www.usip.org/sites/default/files/file/resources/collections/peace_ag reements/pa_es_07261990_hr.pdf. 167 See Diego García-Sayán, “The Experience of ONUSAL in El Salvador,” in Honouring Human Rights and Keeping the Peace (Washington, D.C.: The Aspen Institute, 1995), 39. See also Stanley and Loosle, “El Salvador: The Civilian Police Component of Peace Operations.” For a discussion of rule of law activities undertaken by ONUSAL’s successor, the Mission of the United Nations in El Salvador, see Teresa Whitfield, “Staying the Course in El Salvador,” in Honouring Human Rights: From Justice to Peace, Recommendations to the International Community (Washington D.C.: Aspen Institute, 1998), 163. 168 See Ian Martin, “After Genocide: The UN Human Rights Field Operation in Rwanda,” in Honouring Human Rights: From Justice to Peace, Recommendations to the International Community (Washington D.C.: Aspen Institute, 1998), 101. 169 Chappell and Evans, “The Role, Preparation and Performance of Civilian Police in United Nations Peacekeeping Operations,” 73. Some have suggested that a form of executive policing, with UN CIVPOL having a legal power of arrest and detention, was required given the lack of an impartial system of law and order. See Brigadier-General Klaas C. Roos, “UNTAC’s Civilian Police Operation,” in The United Nations Transitional Authority in Cambodia (UNTAC): Debriefing and Lessons; Report and Recommendations of the International Conference Singapore, August 1994 (Boston: Kluwer Law International, 1995), 140. 170 UNTAC drafted a new criminal law, the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period. In addition, Yasushi Akashi, the Special Representative of the Secretary-General (SRSG) in Cambodia, also issued a directive prohibiting the illegal possession and carrying of weapons and explosives. See United Nations, The Blue Helmets, 477-78. 171 A Special Prosecutor’s Office was established under “Directive 93/1: Directive from the Special Representative of the Secretary-General Establishing Procedures for the Prosecution of Persons Responsible for

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                                                                                                                                                                                                                                                                      Human Rights Violations,” in Honouring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia and Haiti (Washington, D.C.: The Aspen Institute, 1995), 80-82. The impetus for this measure was the rise in political violence that appeared to threaten the election (Dennis McNamara, “UN Human Rights Activities in Cambodia: An Evaluation,” in Honouring Human Rights and Keeping the Peace: Lessons from El Salvador, Cambodia and Haiti (Washington D.C.: The Aspen Institute, 1995), 64-76). Under the provisions of the Directive UNTAC CIVPOL officers or military personnel could arrest and detain persons suspected of “serious human rights violations,”171 who could then subsequently be prosecuted by UNTAC officers before the courts in Cambodia. A UN detention center was even set up (See Brigadier-General Klaas C. Roos, “UNTAC’s Civilian Police Operation,” 140.). 172 Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework (Boston: Kluwer Law International, 1999), 20. 173 For a comprehensive discussion of international administrations, including those of East Timor and Kosovo, see Ralph Wilde, “From Danzig to East Timor: The Role of International Territorial Administration,” American Journal of International Law 95 (2001): 538. See also Richard Caplan, A New Trusteeship? The International Administration of War-Torn Territories; Adelphi Paper 341 (New York: Oxford University Press, 2002). 174 Security Council Resolution No. 1244, June 10, 1999, ¶ 9(d). 175 For a full discussion of the lead-up and different phases of international involvement in the Kosovar judicial system, see Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for PostConflict Peacekeeping, Special Report 112 (Washington D.C.: United States Institute of Peace, 2003), 5. See also Jean-Christian Cady and Nicholas Booth, “Internationalized Courts in Kosovo: An UNMIK Perspective,” in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford: Oxford University Press, 2004). 176 United Nations, Special Political Missions Start-up Guide 2012, 5. 177 United Nations Stabilization Mission in Haiti, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/minustah/. 178 United Nations Mission in the Republic of South Sudan, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/unmiss/. 179 United Nations Operation in Cote d’Ivoire, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/unoci/. 180 African Union/United Nations Hybrid Operation in Darfur, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/unamid/. 181 United Nations Mission in Liberia, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/unmil/. 182 United Nations Multidimensional Integrated Stabilization Mission in Mali, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/minusma/. 183 United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, accessed December 31, 2014, http://www.un.org/en/peacekeeping/missions/monusco/. 184 United Nations Assistance Mission in Afghanistan, accessed December 31, 2014, http://unama.unmissions.org. 185 Sannerholm, “Securitization, Sectorisation and Goal Displacement,” 4, 13.

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                                                                                                                                                                                                                                                                      Ibid., 4. Ibid., 12. 188 Ibid., 14. 189 United Nations Office in Burundi, accessed December 31, 2014, http://bnub.unmissions.org. 190 United Nations Integrated Peacebuilding Office in the Central African Republic, accessed December 31, 2014, http://binuca.unmissions.org. 191 United Nations Integrated Peacebuilding Office in Guinea-Bissau, accessed December 31, 2014, http://www.uniogbis.unmissions.org. 192 United Nations Regional Office for Central Africa, accessed December 31, 2014, http://unoca.unmissions.org. 193 United Nations Office for West Africa, accessed December 31, 2014, http://unowa.unmissions.org. 194 United Nations Integrated Peacebuilding Office in Sierra Leone, accessed December 31, 2014, http://unipsil.unmissions.org. 195 United Nations Support Mission in Libya, accessed December 31, 2014, http://unsmil.unmissions.org. 196 United Nations Assistance Mission in Somalia, accessed December 31, 2014, http://www.unsom.unmissions.org. 197 The United Nations Regional Centre for Preventive Diplomacy for Central Asia, accessed December 31, 2014, http://unrcca.unmissions.org. 198 United Nations Iraq, accessed December 31, 2014, http://www.uniraq.org/index.php?lang=en. 199 Office of the United Nations Special Coordinator for Lebanon, accessed December 31, 2014, http://unscol.unmissions.org. 200 Permanent Observer Mission of the State of Palestine Mission to the United Nations, accessed December 31, 2014, http://palestineun.org; Permanent Mission of Israel to the United Nations, accessed December 31, 2014, http://embassies.gov.il/un/Pages/default.aspx. 201 United Nations, Department of Political Affairs, Field Operations and Good Office Missions, accessed December 31, 2014, https://www.un.org/wcm/content/site/undpa/main/about/field_operations . 202 United Nations, Special Political Missions Start-up Guide 2012, 8. 203 Ibid., 10. 204 Richard Zajac Sannerholm, “Rule of Law after War: Ideologies, Norms and Methods for Legal and Judicial Reform” (Ph.D. dissertation, Orebro University, 2009), 19. 205 Thomas Carothers, The Problem of Knowledge (Washington, D.C.: Carnegie Endowment for International Peace, 2003), 15. 206 Martin Krygier, “The Rule of Law and The Three Integrations,” Hague Journal on the Rule of Law 1 (2009): 21. 207 Kleinfeld, Advancing the Rule of Law Abroad, 2-3. 208 Andrew Rathmell, “Security & Justice Development – What Next?,” Journal of Security Sector Management 7(2) (2009): 4. 209 Institute of Development Studies, An Upside Down View of Governance (Brighton, United Kingdom: Institute of Development Studies, 2010), 69. 210 Rachel Kleinfeld, “Competing Definitions of the Rule of Law: Implications for Practitioners,” in Promoting the Rule of Law Abroad: In Search of Knowledge (Washington D.C.: Carnegie Endowment for International Peace, 2006): 31,53. 186 187

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                                                                                                                                                                                                                                                                      Thomas McInerney, “Law and Development as Democratic Practice,” Vanderbilt Journal of Transnational Law 38 (2005): 109. 212 Sannerholm, “Securitization, Sectorisation and Goal Displacement,” 3. 213 William Easterly, “Planners Versus Searchers in Foreign Aid,” Asian Development Review 23 (2006): 1. 214 Ibid. 215 Justice Kalyan Shrestha, Supreme Court of Nepal, “The Role of Rule of Law Assistance for Sustainable Peace in the Post-Conflict Scenario,” in United Nations New Voices: National Perspectives on Rule of Law Assistance (United Nations, 2011), 104. 216 Vivienne O’Connor "Guide to Change and Change Management for Rule of Law Practitioners." Guide to Change and Change Management for Rule of Law Practitioners. January 22, 2015. Accessed May 1, 2015. 217 Easterly, “Planners Versus Searchers in Foreign Aid,” 1-3. 218 Taylor, “The Rule of Law Bazaar,” 325, 326. 219 Ibid., 325, 334. 220 Sotheavy Chan “The Strengths and Weaknesses of International Support to Legislative Reform in Cambodia,” in United Nations New Voices: National Perspectives on Rule of Law Assistance (United Nations, 2011), 43. 221 Kleinfeld, Advancing the Rule of Law Abroad, 65. 222 Ibid., 61 223 Ibid., 60. 224 Justice Shrestha, “The Role of Rule of Law Assistance for Sustainable Peace in the Post-Conflict Scenario,” 104. 225 Linn Hammergren, “International Assistance to Latin America Justice Programs: Towards an Agenda for Reforming the Reformers,” in Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford: Stanford University Press, 2003): 315. 226 Taylor, “The Rule of Law Bazaar,” 325, 354. 227 Chris Spies, “Resolutionary Change: The Art of Awakening Dormant Faculties in Others,” in Social Change and Conflict Transformation (Berlin: Berghof Research Centre for Constructive Conflict Management, 2006), 52. 228 Fathali M. Moghaddam, The Pscyhology of Dictatorship (Washington, D.C.: American Psychological Association, 2013), 67. 229 See Beatrice Pouligny, Peace Operations seen from Below: UN Missions and Local People (Bloomfield, C.T.: Kumarian Press, 2006), 160. 230 Taylor, “The Rule of Law Bazaar,” 325, 354. 231 Ibid. 232 United Nations, Guidance Note of the Secretary-General; UN Approach to Rule of Law Assistance (2008). 233 Paris Declaration on Aid Effectiveness, 2005, http://www.oecd.org/dac/effectiveness/parisdeclarationandaccraagendafora ction.htm. 234 Agra Agenda for Action, 2008, http://www.oecd.org/dac/effectiveness/parisdeclarationandaccraagendafora ction.htm. 235 Principles for Good International Engagement in Fragile States and Situations (Paris: Organization for Economic Cooperation and Development, 2007), http://www.oecd.org/dac/incaf/38368714.pdf. 236 See Ibid., principle 1. 211

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                                                                                                                                                                                                                                                                      Vivienne O’Connor. "Guide to Change and Change Management for Rule of Law Practitioners." Guide to Change and Change Management for Rule of Law Practitioners. January 22, 2015. Accessed May 1, 2015. 238 United Nations, Guidance Note of the Secretary-General; UN Approach to Rule of Law Assistance, 3. 239 Shannon M. Roesler, “The Ethics of Global Justice Lawyering,” Yale Human Rights and Development Law Journal 13 (2010): 185, 220. 240 Spies, “Resolutionary Change,” 51. 241 United Nations, Guidance Note of the Secretary-General; UN Approach to Rule of Law Assistance, 3. 242 Ibid., 6. 243 United Nations Security Counsel, Report of the Secretary-General UN/S/2004/616, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,” August 23, 2004, ¶ 3, http://www.unrol.org/files/2004%20report.pdf. 244 Kleinfeld, Advancing the Rule of Law Abroad, 62. 245 Andies Odendaal, A Crucial Link: Local Peace Committees and National Peacebuilding (Washington, D.C.: United States Institute of Peace, 2013), 78. 246 See Principles of Good International Engagement. 247 See ibid., principle 6. 248 See ibid. 249 See ibid., principle 8. 250 See United Nations, Guidance Note of the Secretary-General; UN Approach to Rule of Law Assistance, 4. 251 See Principles of Good International Engagement, principle 8. 252 See ibid. 253 Kleinfeld, Advancing the Rule of Law Abroad, 3. 254 Roesler, “The Ethics of Global Justice Lawyering,” 237. 255 Ibid., 236-37. 237

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