Hijacking the rule of law in postconflict environments

Abstract

The positive effects of rule of law norms and institutions are often assumed in the peacebuilding literature, with empirical work focusing more on processes of compliance with international standards in war-torn countries. Yet, this article contends that purportedly ‘good’ rule of law norms do not always deliver benign benefits but rather often have negative consequences that harm the very local constituents that peacebuilders promise to help. Specifically, the article argues that rule of law promotion in war-torn countries disproportionately favours actors who have been historically privileged by unequal socio-legal and economic structures at the expense of those whom peacebuilders claim to emancipate. By entrenching an inequitable state system which benefits those with wealth, education, and influence, rule of law institutions have reinforced structural, social, and cost-related barriers to justice. These negative effects explain why war-torn societies avoid the formal courts and law enforcement agencies despite substantial international efforts to professionalise and strengthen these institutions to meet global rule of law standards. The argument is drawn from an historical, comparative, and empirical analysis of the UK-funded justice sector development programme in Sierra Leone and US-supported rule of law reforms in Liberia – two postwar countries often cited as prototypes of successful peacebuilding.

UN Peace Operations and the Role of the Local in (Re)Building the Rule of Law

“…171 The export of legal institutions, norms, and rules from one state to another is the norm when statebuilding in the global South. 172 By enforcing a Western ideal of the rule of law the conflict-ridden country is left stable but in a way which is comparable with the liberal, law-abiding societies of the West. Robert Blair has highlighted how the UN currently has a focus on rule of law education to socialise state actors to 'align their behavior with rule-of-law (and other) principles.'…”

Promotion of the rule of law: reinforcing domination through the internationalisation of legal norms

“…42 Secondly, and contrary to the expectations of reformers, instead of constraining arbitrary power around the world, the new rule of law is prone to capture by dominant actors who are interested in consolidation of power. 43 For instance, Sitze argues that transitional justice mechanisms such as truth commissions not only fail as miracle-making processes but often end up 'reiterating the forms of colonial sovereignty and governmentality whose excesses' the mechanisms 'exposed and criticised' . 44 he echoes political theorists who warn that 'in multiplying laws you necessarily create more government agents' and 'consequently give a larger number of men power over their fellows' .…”

“…US funding was channelled through the department of Justice (which had a Resident Legal Advisor placed within the US Embassy), the Pacific Architects and Engineers (PAE, for a team of on-the-ground legal advisors, assisting various government institutions), the American Bar Association (ABA, working with the Judicial Institute of Liberia), and the Carter Centre (focussed on traditional justice and mediation systems). 54 In general, overall funding in the Liberian rule-of-law sector was estimated to cost about $13 million annually, and the US government on its own contributed approximately half of this amount. 55 other US-based institutions attracted to Liberia include the Millennium Challenge Corporation which is 'promoting' the rule of law through its governance scorecard, which has six so-called 'ruling justly' and eight 'economic freedom' indicators.…”

“…3 Regarded as a departure from problem-solving concerns about how to improve the efficacy of foreign interventions, the critical peacebuilding literature has also devoted attention to the unintended and adverse consequences of transplanting liberal norms and institutions into conflict-affected societies, including the ability of dominant actors to hijack them to reinforce unequal privileges and power. 4 But perhaps as a consequence of the ongoing disciplinary division between sociolegal studies, international relations (IR) and the peacebuilding literature, we still know very little about how 'the legitimating narratives of the colonial past' which emphasised 'ideas of civilisation, evolution, and race' have been reproduced in the context of international security and post-conflict peacebuilding. 5 While international law is seen as largely synonymous with colonial law in terms of reflecting dominant power structures and ideologies, the relationship between historical and contemporary legal development is less clear, particularly with respect to contemporary rule-of-law programmes implemented under the legal tutelage of Western powers that presided over the establishment of settler-colonial states about a century earlier.…”

Rule of Law and Sustainable Peace in North Kivu Province, in Democratic Republic of Congo (DRC)

“…By perpetuating an inequitable state apparatus that favors individuals with wealth, education, and influence, rule of law institutions further entrench structural, social, and financial barriers to accessing justice. These adverse effects elucidate why societies affected by conflict tend to elude formal courts and law enforcement agencies, despite significant international efforts to enhance their professionalism and capacity to meet global rule of law standards (Sesay, 2019).…”