Research findings include the following observations on the promotion of democracy, the rule of law and transitional justice after conflict:
1. Promoting Democracy After Conflict
International definitions of democracy typically take a minimalist form, simply associating democracy with regular elections. This forms an inadequate basis for building democracy in post-conflict societies. A principle of ‘democratic inclusion’ can usefully guide attempts to develop international standards on democracy.
B. Bowden, H. Charlesworth & J. Farrall, 2009, The Role of International Law in Rebuilding Societies after Conflict: Great Expectations, Cambridge: CUP (in Press). Contents page available here. See Cambridge University Press website for more information.
H. Charlesworth, 2007, Law After War, Melbourne Journal of International Law, Vol. 8, No.2, pp. 233 -247.
H. Charlesworth, 2006, 'Building Justice and Democracy after Conflict', Academy of the Social Sciences Australia , Cunningham Lecture, Canberra 21 November 2006. Available at http://www.assa.edu.au/Publications/OP/op22007.pdf
J. Farrall & K. Rubenstein (eds.), 2009. Sanctions Accountability and Governance in a Globalised World (Cambridge University Press, forthcoming).
2. UN Peacekeeping and the Rule of Law
UN peacekeeping operations are increasingly being tasked with strengthening the rule of law in post-conflict environments. The UN Department of Peacekeeping Operations (DPKO) conceptualises the ‘rule of law’ as consisting of the police, prisons, the judicial system and human rights. This approach amounts to an effort to (re)create in post-conflict environments an idealised, western model of the rule of law. The shortcomings in this approach include the following: The focus on building rule of law institutions requires the investment of enormous financial and human resources. These resources are rarely available in post-conflict environments, leading to a dependency on the ongoing goodwill, commitment and support of external donors. There is therefore a danger that these institutions will collapse once UN peacekeeping operations depart. There can be deep mistrust of formal state justice systems as a result of past abuses and excesses. The key mechanisms of justice supported by the UN, including the police, the courts and prisons, may previously have been used to control and punish government opponents. There is a risk that the local population may view UN rule of law initiatives as responding to external requirements rather than domestic needs. A tendency to overlook, undervalue or ignore pre-existing traditional or customary approaches to conflict resolution.
J. Farrall 2007. 'The Future of UN Peacekeeping and the Rule of Law.' 101 ASIL Proceedings, pp. 160-163.
J. Farrall, 2009. ‘Does the United Nations Security Council Reduce or Compound the Democratic Deficit?’ Alberta Law Journal (forthcoming).
M. Burgis 2008, 'The Promise of Solid Ground: Arab territorial Disputes and the Discourse of International Law,' International Community Law Review, vol. 10. pp. 73-99.
3. Transitional Justice
One of the key decisions facing each post-conflict society is how to seek and deliver justice for victims of past injustice. This decision involves a difficult choice between competing imperatives. Much of the writing on transitional justice explores the so-called ‘peace versus justice’ and ‘truth versus justice’ dilemmas. Framing these imperatives, of ‘justice’, ‘peace’ and ‘truth’, as not only competing but mutually exclusive, implies that it is impossible to achieve peace if justice is pursued, or justice if truth-telling is preferred. The assumption is that justice, peace and truth each have particular, uncontested, one-dimensional, static models, which are inflexible. The suggestion is that peacebuilders deviate from these models at their peril. Yet research conducted to date suggests that: It is neither helpful nor accurate to frame these imperatives, of ‘justice’, ‘peace’ and ‘truth’, in stark, simplistic terms as competing and mutually exclusive. There are an increasing number of situations where a suite of supposedly contradictory transitional justice mechanisms have been employed at the same time. In Timor Leste a serious crimes unit was established to pursue criminal prosecutions, whilst at the same time a community reconciliation approach was also pursued. In Sierra Leone a Special Court was created to pursue high-profile criminal convictions, while a truth and reconciliation commission was also established.
J. Ford 2008, Justice and Peace in a new Zimbabwe: Transitional justice options, Institute for Security Studies Paper 164, June 2008 (with Max du Plessis). PDF available.
S. Harris Rimmer,2007, “Orphans” or Veterans?: Justice for Children Born of War in East Timor, Texas International Law Journal 42(2) 2007, 323-344.
B. Wilson 2008, 'Joint Command for PNTL and F-FDTL Undermines Rule of Law and Security Sector Reform in Timor-Leste,' East Timor Law Journal, 2/ 2008. http://www.eastimorlawjournal.org/
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About the Project
Initial Findings
