Prioritizing Legitimacy, Anti-corruption and Accountability for Serious Crimes at the National Level

24. April 2019   ·   ​Charles Briefel

Three rule of law issues require increased support and innovative approaches by the UN and key member states like Germany: (1) rule of law assistance to reinforce the legitimacy of state; (2) rule of law initiatives with a clearer anti-corruption lens; and (3) enhanced technical, financial and political support for national-level investigations and prosecutions of serious crimes.

Germany has been a forthright, consistent and reliable supporter of and partner on rule of law issues in United Nations peace operation settings. I hope that its new strategy will confirm and reinforce the critical importance of strengthening the rule of law to prevent conflict and sustain peace and security. In fragile settings, the predatory behaviour of security forces, the proliferation of extremist and criminal groups, the illegal exploitation of natural resources, endemic corruption, chronic prison overcrowding, and a prevailing culture of impunity can fragment societies and generate resentment, distrust and hostility towards the government. 

When law-enforcement and justice officials are unable, or cannot be trusted, to protect the people they should be serving, the population – in particular victimized and marginalized communities – will remain vulnerable to atrocity crimes, including sexual violence, and rely on their own means or armed groups to protect themselves or otherwise seek revenge through violent acts of retaliation.

Three key issues that require more innovative approaches

The planned German Rule of Law Strategy should highlight that rule of law assistance is as much political as it is technical in nature. As United Nations peace operations are fundamentally political tools, deriving their legitimacy and leverage from Security Council mandates, they have a critical role to play in building and sustaining political consensus and helping to address the blockages on key rule of law issues that can further fuel or trigger a relapse into conflict. Rule of law assistance also requires integrated, coherent and coordinated responses drawing upon and utilizing UN Missions’ unique convening authority to rally national, regional and international partners in these efforts, based on established international norms and standards.

I would emphasize three key issues – based on the research, field visits and lessons learned studies I have been involved in – that  I believe require increased support and more innovative UN and other international approaches: (1) the need for rule of law assistance efforts to reinforce the legitimacy of state service delivery; (2) the need for rule of law initiatives and programmes to be designed from the outset with a clearer anti-corruption lens; and (3) the need to enhance technical, financial and political support for credible investigations and prosecutions of international and other serious crimes at the national level.

Strengthening the legitimacy of the state

Firstly, recent reports on the work of the UN in support of extension of state authority and stabilization mandates have highlighted the importance of strengthening not only the presence and capacity of the state but also its legitimacy. While these three components are mutually reinforcing, international assistance efforts pay insufficient attention to “legitimacy.” Our support for the strengthening of rule of law in post conflict contexts can be significantly undermined if law enforcement and justice institutions are widely perceived by local populations as instruments of a corrupt and predatory government. However challenging, cultivating legitimacy should therefore be an essential element of all rule of law programmes and be informed by thorough periodic analyses of the political, socio-economic and conflict dynamics.

Secondly, and linked to the issue of legitimacy, rule of law assistance efforts need to recognize from the outset the role of corruption as a serious impediment to strengthening the rule of law, extending state authority and sustaining peace and security. We need to place anti-corruption approaches and goals at the core of our rule of law strategies and programmes. Our assistance efforts, however, tend to focus on more tangible short-term immediate objectives, such as law reform, infrastructure and training. While combatting corruption in the rule of law sector is a long-term process, we should not exclude addressing some corruption issues early on, so that the state is seen to be making some credible efforts to address it. We should not underestimate the significance of securing early and visible progress in combatting corruption, thereby sending a signal of change and a break from the past.  

In the justice sector, measures – particularly those that increase openness and transparency – should include: the introduction of accessible case management systems and prison databases, more transparent and open procedures, the publication of reasoned judicial decisions, asset declaration requirements for justice officials, the introduction of credible processes for registering and investigating complaints against police, prosecutors and judges, and the expansion of legal aid. Such initiatives can also help boost public confidence in rule of law institutions that are otherwise viewed with distrust, suspicion and scepticism.

Credible accountability at the national level

Ensuring accountability at the national level for international and other serious crimes, including conflict-related sexual violence, is an essential component of the protection of civilians, conflict prevention and stabilization and peace sustainment efforts in conflict and post-conflict settings. While international accountability mechanisms have received considerable support and attention over the last three decades, and have had significant achievements, states continue to have the primary obligation to investigate and prosecute perpetrators. Accountability mechanisms at the national level have, however, received less attention, recognition and international support. 

Establishing or strengthening credible national-level criminal accountability, however challenging in the contexts in which we work, can help rebuild confidence in the justice system, restore the legitimacy of the state, enable local populations to see justice being delivered, and prevent the recurrence of future violations of human rights. The 2017 World Bank/UN Study, Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict, highlighted that domestic criminal prosecutions for past human rights violations, including prosecutions pursued against middle and lower-level offenders, can have a positive impact on preventing the recurrence of conflict. While such prosecutions are less politically charged and easier to process, they can also help build up the evidence base for subsequent prosecutions of higher-level offenders.

While some argue that we should be more modest in our expectations regarding accountability at the national level and wait until the political environment is more conducive and the national justice systems more developed, this cannot and should not be an option in countries such as South Sudan, Mali, and DRC where atrocities against the civilian population – particularly women and children – continue to be perpetrated on an immense scale. In peace operation contexts, different approaches and models have been supported, including Prosecution Support Cells in the Democratic Republic of Congo (DRC) and the establishment of the Special Criminal Court in the Central African Republic. In the DRC, thanks to the support of the UN Mission (MONUSCO) and other UN and non-UN actors, and despite the challenging context, a significant number of officers of the national army (FARDC) and of armed military groups have been successfully prosecuted at the national level for crimes against humanity, including for conflict-related sexual violence. 

For such rule of law assistance efforts to succeed, sustained political, technical, logistical and financial commitment is required. The UN needs strong mandates matched by adequate resources and the effective political engagement and leverage of key Member States such as Germany.

Rechtsstaatsförderung Korruption

​Charles Briefel

Charles Briefel is Senior Policy Officer for Rule of Law in the Office of Rule of Law and Security Institutions, United Nations Department of Peace Operations in New York. The views expressed herein are his own.