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INITIATIVE REPORT

ESTABLISHING RULE OF LAW AND

GOVERNANCE IN POST-CONFLICT SOCIETIES

July 11 - 14, 2002
Koç University, Istanbul, Turkey

Program Chair: Nafis Sadik

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n the last decade it has become abundantly apparent that transitions to democracy require not only the regular conduct of elections, but also sustained international attention and meaningful support for the creation of functioning economic and social institutions, and their pre-conditions. With a stable and accountable infrastructure, citizens in developing nations are better able to assume ownership of the transitional process, and this is essential to the task of establishing rule of law in newly democratic countries. This recognition has substantially broadened the role of the international community in transitional and post-conflict societies. It has also given rise to a contentious debate over sovereignty and over what level of involvement by the international community is most effective in creating sustainable institutions. Recent experiences in Bosnia, Cambodia, East Timor, Kosovo and Sierra Leone raise very different concerns and sometimes point to contradictory solutions.

In an effort to stimulate creative thinking on this subject, the Project on Justice in Times of Transition at Harvard University and the United Nations Association–USA launched the Partnership on Peace-building and Rule of Law Program, which seeks ways to strengthen the capacity of the United Nations and other multilateral institutions to support the establishment of rule of law during peace operations. What distinguishes this program is that it engages “local voices” – in-country practitioners who have struggled to rebuild their societies working in concert with an international presence – in order to ensure that the design of future peace operations incorporates their perspectives and the lessons learned on the ground. To date the Partnership Program has held three meetings –in Singapore (with the National University of Singapore), New York and Istanbul (with Koç University). This report summarizes the discussions held during the Istanbul conference and outlines the recommendations on peace-building formulated by the participants during that meeting.

The conference, “Establishing Rule of Law and Governance in Post-conflict Societies”, was organized by the Project on Justice in Times of Transition and the United Nations Association-USA in close partnership with Koç University. It was held on the scenic Istanbul campus of Koç University on July 11 – 14, 2002. As with the March regional meeting in Singapore, the primary objective of the Istanbul conference was to facilitate the drafting of recommendations on peace-building in the area of rule of law by practitioners from the field. In Singapore general recommendations were formulated on the subject of judicial reform, police reform and capacity building. The Istanbul conference sought to build on these recommendations and to collect experiences from a second set of practitioners involved with larger United Nations peace operations, drawing this time on practitioners involved in Afghanistan, the Balkans and the Middle East. In light of the United Nations’ current preoccupation with its mission in Afghanistan, there was an emphasis at the Istanbul meeting on some of the unique peace-building challenges faced there.

Discussions in Istanbul were substantive and extremely productive. The meeting afforded participants – who possessed both extensive practical experience and significant academic expertise – an extended opportunity to share their knowledge and to discuss the larger, long-term implications of the peace-building strategies implemented over the past decade. Deliberations among the participants resulted in the formulation of over 40 applicable recommendations stipulating how international involvement and efforts to create rule of law institutions in post-conflict societies can be improved. While members of the group raised many very different and equally important issues, there was general agreement in regard to several important overarching points:

1)Peace-building should be approached in a holistic manner. Discussions in the course of the three-day
event repeatedly demonstrated the extent to which efforts to establish legal, governmental, security and economic structures are intertwined.

2)In order to be sustainable, all stages of the reconstruction process should be initiated, led and carried out in partnership with local actors. The role of the international community in re-constructing post-conflict societies therefore should be to facilitate access to the tools local actors need to carry out this effort and to create an environment that allows broad participation in the process.

3)Coordination – both among international actors and between these and local stakeholders - needs to be improved. Mission after mission coordination problems among the various institutions and actors involved prevents quick and effective solutions to the difficult problems faced in the field.

4)The international community needs to improve its capacity to act effectively during the decisive early stages of a peace operation. This includes:

  • cultivating capacities to assess the situation on the ground,
  • establishing contact with a broad range of actors in all sectors,
  • and engaging a well prepared and trained staff prior to entry into the war-torn country.

At the same time it is vital that decisions at this early stage prioritize the needs on the ground, rather than the interests of the international community.

CONFERENCE PARTICIPANTS

The Istanbul meeting was chaired by Nafis Sadik, Special Advisor to United Nations Secretary-General Kofi Annan and former Executive Director of the United Nations Population Fund. Of the 44 participants who attended the meeting, almost all had had direct involvement in peace operations in post-conflict contexts, including: Afghanistan, Angola, Bosnia, Cambodia, East Timor, El Salvador, Kosovo, Lebanon, Macedonia, Mozambique, Namibia and Sierra Leone. Individuals involved in the current transition in Afghanistan, who joined the meeting in order to listen to the lessons learned on the establishment of rule of law in other past peace operations and to explain how these issues are currently being tackled in Afghanistan, made up the largest group of representatives. In addition, more than one-quarter of the participants had direct experience working in one of the recent international peace missions in the Balkans – including those in Bosnia, Kosovo and Macedonia.
Finally, a number of participants were affiliated with institutions that offer training to staff of multilateral peace operations. Practitioners present at the conference included:

  • Mohammad Ghul Ateeqi, Deputy Chair, Judicial Commission, Ministry of Justice, Afghanistan
  • Sultan Aziz, Senior Advisor, United Nations Assistance Mission in Afghanistan, Afghanistan
  • Alipio Baltazar, Assistant Program Officer, Asia Foundation, Dili, East Timor
  • Pacal Budge, Site Manager,International Police Program, Kosovo
  • Vojislav Dimitrijevic, Former Public Prosecutor, Republika Srpska, Bosnia-Herzegovina
  • Bart D'Hooge, Director, Department of Police Education and Reform, OSCE Mission in Former Yugoslav Republic of Macedonia
  • Vjosa Dobruna, RTK public media station board member; former head of United Nations Mission in Kosovo, Department of Democratic Governance and Civil Society, Pristina, Kosovo
  • Ömer Gurulkan, Deputy Director, International Affairs, General Directorate of Security Ministry of the Interior
  • Kawun Kakar, Political Affairs Officer, United Nations Assistance Mission in Afghanistan, Afghanistan
  • Kim Sathavy, Director, Royal School for Magistracy, Phnom Penh, Cambodia
  • Jeremy King, United Nations Mission in Bosnia-Herzegovina, Civil Affairs Officer, Bosnia-Herzegovina
  • Jacques Paul Klein, Special Representative of Secretary General Kofi Annan to Bosnia-Herzegovina
  • Winrich Kühne, Director, Zentrum für Internationale Friedenseinsätze (Center for International Peace Operations),Berlin
  • Nina Lahoud, Chief of Peace-keeping Best Practices Unit on special assignment to the Rule of Law Project, Department of Peace-keeping Operations at the United Nations
  • Shaher Momeni,Director, Building and Construction Department, Amman, Jordan;former Commander of Jordanian contingent of United Nations Mission in Bosnia-Herzegovina
  • Satish Nambiar, Director, United Service Institution, New Delhi, India
  • Chanthol Oung, Director, Cambodia Women’s Crisis Center, Phnom Penh, Cambodia
  • Nafis Sadik, Special Advisor to United Nations Secretary-General Kofi Annan and former Executive Director, United Nations Population Fund
  • Behrooz Sadry, Deputy Special Representative of the Secretary-General for Sierra Leone, United Nations Mission in Sierra Leone
  • Teki Shehu, Senior Commercial Law Officer, United Nations Mission in Kosovo, Department of Trade and Industry, Pristina, Kosovo
  • Saul Suster, Senior Advisor to President Francisco Flores and President Alfredo Cristiani of El Salvador
  • Ali Wardak, Lecturer in Criminology; Director, Black and Asian Offenders Project,Centre for Criminology, University of Glamorgan, United Kingdom
  • Alfredo Witschi-Cestari, United Nations Development Program, ResidentRepresentative and Coordinator, Ankara, Turkey
  • Ute Worzfeld, Judicial Inspection Unit, Pristina, Kosovo

These practitioners were joined by academic experts on Afghanistan, international peace-building and policy advisors from Turkey (some of whom were involved with the mission in Afghanistan) and the conference organizers and sponsors:

  • Attila Askar, President, Koç University
  • Dilek Barlas, Assistant Professor, Koç University
  • Ina Breuer, Associate Director, Project on Justice in Times of Transition, Harvard University
  • Mehmet Celayir, General Secretary, Koç University
  • Antonia Chayes, Kennedy School of Government, Harvard University
  • Kimberly Dasher, Program Associate, Policy Programs, United Nations Association-USA
  • Aydin Evirgen, Deputy Director General, Ministry ofForeign Affairs, Ankara, Turkey
  • Ersin Kalaycioglu, Professor of Political Science and International Relations, Boğaziçi University
  • Timur Kocaoglu, Professor of Turkish Languages and Central Asian Studies, Koç University
  • Jeff Laurenti, Director, Policy Programs, United Nations Association-USA
  • Wendy Luers, Steering Committee member, Project on Justice in Times of Transition, Harvard University
  • William Luers, President and CEO, United Nations Association-USA
  • Kirsten Lundberg, Case Writer, Case Program, Kennedy School of Government, Harvard University
  • Tim Phillips, Steering Committee Member, Project on Justice in Times of Transition,Harvard University
  • Robert Rotberg, Director, Program on Intrastate Conflict, Conflict Prevention, and Conflict Resolution, Harvard University
  • David Scheffer, Senior Vice President, United Nations Association–USA
  • Binnaz Toprak, Professor, Boğaziçi University, Turkey
  • Frank Vogel, Professor, Harvard Law School, Cambridge
  • Suhnaz Yilmaz, Assistant Professor, Koç University, Istanbul, Turkey
  • Sara Zucker, Director, Project on Justice in Times of Transition, Harvard University
CONFERENCE STRUCTURE

The conference included five panels and three break-out sessions. Each of the panels was designed to highlight and encourage analysis of a particular set of issues relating to the establishment of new legal and security institutions in post-conflict situations. The selection of panel topics was influenced by the fact that the meeting was paying special attention to the case of Afghanistan, where the challenge of establishing rule of law was just getting underway. In addition, the organizers sought to build on previous discussions in Singapore and New York by focusing on issues that explore the intersection of efforts to establish governing and legal institutions and examining the processes with which legal institutions are introduced. The five panel topics were:

  • Establishing Rule of Law and Governance
  • The Integration of International Norms and Domestic Law
  • Developing Sustainable Legal Institutions
  • Domestic Security
  • The Role of Civil Society

Each panel sought to both compare the relevant experiences of practitioners from different UN missions and to examine the role and effectiveness of the international community in the transitional process.

The break-out sessions, which followed the five panel discussions, were designed to promote further in-depth debates on the subjects raised in the panels and to facilitate the formulation of recommendations on peace-building and the establishment of rule of law. Specifically, the break-out sessions sought to solicit participant recommendations on three key questions:

1) What are effective mechanisms for establishing a new legal order in a post-conflict society?
2) What must be considered when reforming or creating domestic security institutions and political accountability?
3) And what is the role of civil society in re-establishing peace in post-conflict contexts?

In the course of the three-day conference participants were also given ample time for informal interaction. In addition to a tour of Istanbul, they enjoyed a boat ride down the Bosporus and visited the new Koç Museum on the banks of the water. Istanbul, a city that embodies the meeting of Eastern and Western culture, proved to be a stimulating backdrop to the comparative cross-cultural discussions taking place at the meeting.

ESTABLISHING RULE OF LAW
AND GOVERNANCE

The design of a constitution and the creation of government structures have a direct impact on how efforts to establish rule of law are implemented. The process of writing a constitution is central to shaping the authority of the state and it usually contributes to the initial perceptions that citizens have of their new government. In most transitions, the constitutional process and related reforms are among the first activities to get underway, and in many peace operations, facilitating this process is one of the primary mandates of the United Nations administration. The first panel of the conference sought to investigate and assess the lessons on this subject that can be drawn from the cases of East Timor, Bosnia, and Afghanistan. The session was moderated by David Scheffer, Vice President of the United Nations Association-USA and former Clinton Administration Ambassador-at-large for War Crimes Issues. The panelists were Alipio Baltazar, Program Associate at the Asia Foundation in East Timor; Vojislav Dimitrijevic, a public prosecutor from Bosnia; and Kawun Kakar, an affiliate of the United Nations Assistance Mission to Afghanistan.

Alipio Baltazar began the discussion by describing the consultative process that preceded the adoption of the constitution in his homeland, East Timor. As he explained, despite efforts to engage the public prior to the recent elections, the East Timorese were not adequately informed about the structure of the new government that the constitution was proposing. According to Mr. Baltazar, who participated in a careful assessment of the recent constitutional process in East Timor for the Asia Foundation, time constraints and several key decisions by the parliament stopped a more extensive discussion of options and hindered full consideration of the public’s concerns about the constitution. More specifically, he reported, the civic education campaign, which was initiated to disseminate information regarding the election to the Constituent Assembly, was not long enough to focus on issues beyond voter education. The rationale behind important decisions, such as for example, the decision to transform the Constituent Assembly into the first parliament, was not effectively communicated to the public. In addition, the Constitutional Commission, which held over 200 hearings on the constitutional process throughout East Timor’s 65 sub-districts, failed to hold a discussion of the results of these hearings in parliament. The reports of these hearings were intended to be a central means of communicating public opinion to the Constituent Assembly so that it could be taken into account in the design of the constitution. Apparently full disclosure and consideration of these reports was blocked by members of the Fretelin party in parliament, who argued that the Thematic Commissions that held the meetings and wrote the reports were not elected bodies and therefore lacked legitimacy. Based on this experience, Mr. Baltazar emphasized that a major lesson of the case of East Timor for future peace operations is that adequate time must be allowed for discussion and review of the new constitution prior to its adoption.

Despite several years of extensive UN involvement, the establishment of rule of law in Bosnia has not been achieved. The second speaker identified how the processes introduced during early stages of the peace operation in Bosnia continue to shape the current state of affairs in the country. According to Vojislav Dimitrijevic, the main obstacles to the establishment of rule of law in Bosnia have been the “lack of political will from domestic stakeholders and lack of clear strategy by the international community.” In his presentation he explained that though it has been 12 years since the end of communism, eight years since the end of the war and many years since the international community has been involved in trying to cultivate a culture of rule of law in Bosnia-Herzegovina, the judicial system continues to be inefficient and riddled with corruption. As in much of Eastern Europe, the communist regime in Bosnia fostered a culture in which political influence over the judicial system was the norm and judges in post-war Bosnia have continued to tolerate and even engage in this practice. As Mr. Dimitrijevic pointed out, in his experience even when new judges possess the ability to make independent decisions, few are inclined to do so. In addition, in his opinion the international community has not been successful in enforcing a new culture of legality, in part due to its own decentralized and fragmented structure. In order to separate political influence from the legal system, he argued, a unified effort must be made to install and enforce a new system for the appointment and dismissal of judges and prosecutors that is both open and based on merit rather than political influence. Furthermore, independent sources of financing must be found and utilized, and judges must be given easy access to legal precedent and statistics relating to the law. A primary lesson from the Bosnian case is therefore that mechanisms that shield judicial systems from political influence must be put in place and institutionalized at the start of efforts to create a new government structure, and that these mechanisms must be supplemented and supported by a coordinated approach to legal reform on the part of the international community.

Kawun Kakar, currently affiliated with the United Nations Assistance Mission to Afghanistan, shared his recent experiences with the loya jirga. As Mr. Kakar described, the purposes of the loya jirga were to elect a transitional administration, approve the new structure of government and make appointments to key posts. The role of the UN in this process was largely supportive. It was focused on helping the Afghans to hold the first post-war loya jirga and to make the first steps in their transition to a democratic government. The loya jirga process was designed to establish the legitimacy of the transitional administration and facilitate the creation of an ethnically balanced and effective government. As Mr. Kakar reported, despite enormous technical, logistical and security challenges, the loya jirga was held on time and was largely successful in providing Chairman Karzai and his cabinet with the necessary legitimacy to proceed with the task of drafting a constitution. According to Mr. Kakar, the next challenge will be to extend control of the central government to the provinces and establish security throughout Afghanistan. While acknowledging that the new cabinet supporting Mr. Karzai has more diverse ethnic balance, he worried that the “major question is whether the change on the ministerial level will in fact mean any changes on the ground.” Mr. Kakar concluded his presentation by emphasizing that close collaboration in the coming months with the three commissions formed in Bonn – the demobilization and disarmament commission, the judicial commission and the human rights commission – will be key to the establishment of a new constitution.