Fostering the Rule of Law – a Milestone Approach

11 April 2019   ·   Bojan Gavrilovic

Rule of law assistance is marked by paradoxes like neglecting the blatant political dimension. To overcome these paradoxes, the German actors have to continuously measure the impact of their programs via a set of predetermined indicators such as official statistics in line with Human Rights-Based Approach to Data or a public register of complaints of ill-treatment and high profile corruption.

Deliberation on the most effective strategies for advancing the rule of law is a welcome development. In this piece, “rule of law” is understood as the equal application of just legal norms, and is seen as intrinsically interrelated with democracy as a form of government and with the observance of basic human rights.

Rule of law paradoxes

Efforts aimed at strengthening the rule of law in countries where this concept either never took root or is completely absent are marked by some paradoxes. Namely: rule of law assumes that valid legal norms meeting basic human rights standards are consistently applied across the board without political interference. Yet, introducing and strengthening the rule of law is a political process par excellence as it depends on political will of those in power: they must willingly strive to limit their power and give up benefits by subjecting themselves to the law. However, it is often overlooked that ruling elites – in most cases – do not have sufficient incentive to do so. Therefore, international assistance in the justice field might be seen merely as a useful tool for consolidating political elites’ hold on power.

A further paradox concerns post-conflict states, where the need for the rule of law is especially great. These states, with their feeble institutions functioning in the context of a fragile peace, are expected to rise to a challenge that much stronger states would find difficult to master. Namely, they are supposed to rectify gross human rights violations – committed on a massive scale – in a manner in keeping with international standards, while coping with mass displacement, internal strife and a precarious security situation. A milestone approach can help providers of rule of law support, like Germany, to overcome these paradoxes.

Closing the commitment gap

Unconditional assistance provided to those paying only lip service to the rule of law usually backfires as it merely strengthens the legitimacy claims of autocratic regimes. German rule of law support needs to get political elites to commit to the rule of law and then continuously monitor that commitment via set of predetermined indicators. Perpetual failure to demonstrate genuine effort made towards advancing the rule of law and human rights should, as a last resort, result in withdrawal of support.

A three-step tactic to facilitate the rule of law may also prove advantageous. During the initial step – that of designing, drafting and passing legislation – emphasis should be placed on fostering public consultations, the involvement of civil society and ensuring that the law meets minimum human rights standards. The second phase provides training on methodology, legal concepts and the tests necessary for proper adjudication of individual cases. The third phase should be focused on independent monitoring of the implementation of the new law in the course of an initial three years. Most importantly, Germany should make further assistance in justice, and arguably other, matters conditional upon meeting clearly defined and verifiable milestones.

Non-inclusiveness in the deliberation process, discriminatory provisions in legal texts, the obstruction of training, or arbitrary implementation should provoke open criticism at the receiving state leading either to the re-establishment of the commitment to the rule of law or sanctions and the termination of cooperation. This approach would be most effective when applied in consortium with several providers of developmental assistance, with whom Germany should work closely.

Placing value on empirical data

Spending huge amounts of money to develop new legislation and train law enforcement officials and judges, without having impact assessment mechanisms in place is at the very least a dubious approach: As already noted by one contributor to PeaceLab-Blog, the current state of rule of law in Bosnia and Hercegovina, after receipt of 20 years of systematic support, leaves much to be desired. The situation is not much better in other long-term recipients of rule of law assistance such as Serbia. Therefore, as much as possible, Germany should make sure that every concrete project aimed at enacting human rights compliant legislation and improving capacity in the area of rule of law includes a follow-up process, the sole aim of which is to measure the effect of such intervention.

This measurement can take different forms, such as: trial monitoring; publishing official statistics assembled in line with Human Rights-Based Approach to Data; measurements of the performance of the justice system similar to EU justice scoreboard; inspection of places of deprivation of liberty in line with international standards; and forming a public register of complaints of ill-treatment, domestic violence, high profile corruption and their outcomes; as well as a public register of persons deprived of liberty. In short, German rule of law support should make an effort to introduce tools to capture the performance of state institutions and officials in areas that are crucial for establishment of the rule of law.

Beyond this, a few aspects deserve to be highlighted: Germany should be mindful of informal justice mechanisms, such as tribal justice, which could, under specific circumstances, be seen as a better alternative to formal justice. While informal dispute resolution mechanisms may be a welcome addition to state justice, bearing in mind their flexibility and rootedness in a local setting, one can hardly speak of rule of law when people turn to unofficial informal adjudicators in order to avoid the corruption, lengthy procedures and incompetence of state justice. Thus, Germany should focus on strengthening the format and official justice system in a partner country.

Finding and strengthening allies

The most promising national allies in advancing rule of law are national human rights institutions (NHRIs). Strengthening NHRIs is easier said than done as states may resort to informal mechanisms to exert control over formally independent NHRIs. The level of compliance with the Paris principles expressed in the current accreditation system run by the Global Alliance of National Human Rights Institutions can serve as a starting point in this regard, but should not be relied upon too heavily since accreditation does not necessarily reflect NHRIs actual level of independence. Namely, according to their accreditation status as of 26 May 2017 NHRIs in, for example, Afghanistan, Qatar, Egypt, Nigeria, and Russia are accorded ‘A’ status (full compliance), whereas those in Austria, Slovenia, and Sweden were accorded ‘B’ (not fully in compliance) and NHRIs in Switzerland, Romania and Iran acquired only ‘C’ status (non-compliance).

Germany should continue to rely on non-governmental organizations (NGOs) as partners in implementing projects aimed at improving respect for human rights and the rule of law. However, certain changes are necessary to maximize effect of such projects: People working in NGOs active in authoritarian countries find themselves in a precarious position. They are expected to uphold the rule of law, which in many instances entails denouncing human rights violations. In addition to harassment, they might be subjected to enforced disappearance, torture and other crimes of comparable gravity. A meaningful way to mitigate this threat is to provide more proactive support in high-level political talks with state officials of the receiving state. More precisely, Germany must make it abundantly clear that states in receipt of support have a duty to guarantee the safety and security of individuals working on rule of law projects and that any offensive action against them – be it by state or non-state actors – will not be tolerated. 

Last but not least, the rule of law could be strengthened by introducing external correctives for national judicial instances. Recommendations to states that they accept individual communication procedures before human rights courts or treaty bodies should be accompanied with tangible offers to strengthen their government agencies which are mandated to represent state interests by transferring know-how, providing equipment, or hiring competent staff.

Rechtsstaatsförderung Korruption

Bojan Gavrilovic

Bojan Gavrilovic is a legal advisor and trainer working with Jiyan Foundation for Human Rights.