The different roles of rule of law in conflict and fragility

15. April 2019   ·   ​Yannic Körtgen

In each of the three phases of conflict identified in the German government’s guidelines, rule of law plays a different role. A ‘user-centered design’ approach helps to identify appropriate rule of law measures, while early information sharing and aligned project designs help to harmonize efforts.

The breakdown of the rule of law is one of the most significant indicators of an escalating conflict. It is therefore worth taking a closer look at the role the rule of law plays in the three phases of conflicts as distinguished in the German government’s Guidelines on Preventing Crises, Resolving Conflicts, Building Peace (‘The Guidelines’): latent, active/violent and post-conflict.

It is very rare that an entire country linearly transits each of these phases, and it usually does not do so as a whole, neatly contained in its national borders. Instead, various regions or districts move – often back and forth – between phases of active and latent conflict. Communities already believed to be on a trajectory towards peace fall back into violence.

Likewise, the complexities of relationships and alliances in conflicts are anything but a clean-cut contest between two parties. The landscape tends to include a large variety of traditional authorities, local rivalries and various configurations of social power, down to the individualistic situations in each village and valley.

Do I need this? - From state-centered to user-centered 

Beyond Kelsenian ideas of a pure theory of law, postulating rule of law as mere formal legality stripped from humanist ideals, today’s prevailing doctrine is that fundamental rights and other substantial elements are indeed indispensable components of the rule of law equation. However, it is paramount to emphasize that the term ‘rule of law’ can have very different meanings across cultures and legal traditions. Rule of law support can only be effective if it succeeds in integrating into the prevailing value system of the given context.

Therefore, the most important question before implementing measures is to ask, “What do people actually need?” What is needed is a form of ‘user-centered design’ approach to the rule of law. An approach that gives primacy to making the outcome of a measure or program usable and useful by focusing on the human user – in this case the justice seeker.

Measures need to address local levels, not just the national level. Some countries never had a strong central government and probably never will. Where nearly every individual is a member of centuries-old tribal structures, a strategy solely focusing on central state institutions is destined to fail. Beyond the usual context analysis, this requires actual immersion into the justice seeker’s perspective: thoughts, feelings and preferences. It is important to understand that people do not have legal problems – they just have problems.

Watch the parking meters – rule of law in the triphasic conflict model

In the time of latent conflict, law and justice mechanisms play a significant role in conflict prevention. Preventive may be those mechanisms which help to uphold and enforce the state monopoly on the use of force. Preventive are also those providing people with access to justice and thus with means to peacefully resolve conflicts.

In the aftermath of a conflict, the focus lies on long-term sustainable peace processes, promoting reconciliation and the legal processing of committed injustices. That includes early steps towards rebuilding functioning statehood, in order to ensure the provision of key public services and the acceptance and trust of the state order by the population – and to prevent further conflict.                                          

Rule of law support in times of active conflict, where the prime directive is to end bloodshed, is a somewhat different story. The Guidelines place heavy emphasis on legitimacy, particularly the legitimacy and authority of the prevailing order and its political institutions. The argument is that when state organs enjoy the trust of those that they govern, this leads to voluntarily lawful behavior. In other words, trust and legitimacy entice voluntary allegiance.

But where does this legitimacy come from? Today the source of legitimacy is usually described by mutual conformity with procedural values. In the sphere of the rule of law, this means fair and inclusive procedures concerning administrative decision-making, legal disputes, criminal procedures, as well as legally guaranteed means of inclusive political participation. In short: input-oriented legitimacy (as opposed to output-oriented legitimacy, meaning the provision of access to public goods and services). According to a recent study, measures that support input legitimacy may have a greater impact on overall allegiance then those that support output legitimacy. If this holds true in fragile scenarios, as Lothar Jahn notes in his contribution, it is important to focus on fairness structures - the ‘how’ of state decision-making.

However, it does not end there. As mentioned, violent conflict is characterized by byzantine relationships of various groups and sub-groups, and often enough the current government plays a significant role in perpetuating the conflict. It is in those situations that non-state justice actors and other agents of peace may play a crucial role, by de-escalating, minimizing the impact of the conflict and promoting peaceful coexistence. Religious or traditional authorities may act as mediators, bringing conflicting partners to the negotiating table. Restorative justice facilitators may provide relief to social tensions, otherwise unaddressed by dysfunctional and crumbling state justice systems.

Indeed, traditional justice systems might be the most trusted providers of conflict resolution. In fact, in many countries of the developing world, over 80% of all legal issues are handled by informal or non-state judicial mechanisms. These may not always perceive themselves as judicial entities. For example, the Shuras and Jirgas in Afghanistan are decision-making councils of elders, which generally do not distinguish between judicial, administrative or other issues of the communities. They just deal with issues.

William S. McCallister and Major Jim Gant, both former U.S. military deployed in Afghanistan, published ‘tutorials’ for approaching a Jirga or Shura as a Westerner. In those, they put up ‘rules’, which really display the right approach to different cultural understandings of the rule of law anywhere. The ones that stuck most where:

  • Keep their culture – Know the customs. Know the culture. Know the people.
  • If you think you are better than them, smarter or stronger – DON’T GO. SEND SOMEONE ELSE.

Mannschaftssport – different targets but one goal

It is no secret that German development policy and German foreign policy look at rule of law promotion from somewhat different angles. While the German Foreign Office primarily enlists rule of law and justice as a tool for short-term stabilization, German development cooperation usually thinks in long-term sustainable development patterns. These perspectives are not at all mutually exclusive.

Instead, the solution must be to intermesh and to harmonize short-term measures and long-term programs to streamline them into concerted action. When conceiving short-term measures, the long haul should already appear on the conceptual horizon. This only works if all relevant actors share information at an early stage of planning and align project designs and programming accordingly. To this end, joint missions, joint strategy development concerning individual countries and regions and joint monitoring and evaluation of projects should be readily employed.

The Guidelines and the subsequent strategy processes open a window of opportunity to define positions, priorities and approaches. It is the opportunity to create a common vision of what German rule of law support should look like.

Individually, the various German actors dispose of quite extensive toolboxes for development, stabilization and rule of law support. However, common effort and vision are needed if these instruments are to be deployed efficiently. It was Babe Ruth who said, “You may have the greatest bunch of individual stars in the world, but if they don't play together, the club won't be worth a dime.”

Rechtsstaatsförderung

​Yannic Körtgen

Yannic Körtgen is a trained jurist and policy advisor working in GIZ’s Sector Programme Governance. This article expresses his personal opinion.