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Neil J. Kritz

reconciliation between domestic adversaries,

beginning of the twenty-first century who together must build a durable national
requires a fresh perspective on the union. One element that assumes far greater
methods of managing conflict on the one importance in this changed context of war is
hand and of making and maintaining peace on the development of the rule of law.
the other. Today, the overwhelming majority It is essential at the outset to distinguish
of wars around the world are intranational between the rule of law and simply rule by law.
rather than international. Wars fought be- Broad concepts like democracy and the rule of
tween the military forces of two sovereign law can easily be distorted. Even totalitarian
countries are increasingly the exception to the regimes frequently use law as a tool in their ar-
norm. In their stead, ethnic and religious con- senal of mechanisms for social control. The
flicts, disputes over self-determination or se- Nazis clothed much of their atrocities with a
cession, and violent power struggles between veneer of legality. The Soviet constitution of
opposing domestic political factions account 1936 reads like a litany of legal entitlements,
for 93 percent of the major armed conflicts yet it served Stalin well with its wide loop-
recorded in recent years worldwide. In 2004, holes for contortion.2 Repressive states from
in fact, all nineteen major armed conflicts Romania to Zimbabwe have invoked the law
were intrastate.1 This statistic has profound even while attacking their own citizens. These
ramifications for the processes of conflict pre- are each examples of rule by law, in which
vention, conflict resolution, and postconflict courts, statutes, and regulations are manipu-
peacebuilding. Tools and techniques that may lated in the service of tyranny. In contrast, the
be appropriate for resolving “classical” wars be- rule of law does not simply provide yet one
tween state actors are often inadequate for more vehicle by which government can wield
achieving a meaningful accommodation and and abuse its awesome power; to the contrary,


it establishes principles that constrain the in the context of battles between states. By
power of government, oblige it to conduct it- November 1994, when the United Nations Se-
self according to a series of prescribed and curity Council established an international
publicly known rules, and, in the postconflict criminal tribunal to prosecute the genocide in
setting, enable wary former adversaries to all Rwanda, that understanding had changed. As
play a vital role in keeping the new order hon- approved by the Security Council, the charter
est and trustworthy. of the Rwanda tribunal severed any nexus re-
Adherence to the rule of law entails far more quirement between the international prosecu-
than the mechanical application of static legal tion and punishment of crimes against human-
technicalities; it involves an evolutionary search ity, on the one hand, and the international or
for those institutions and processes that will noninternational character of the conflict in
best facilitate authentic stability through jus- which they were committed, on the other,
tice. Beyond its focus on limited government, applying these international prohibitions to
the rule of law protects the rights of all mem- purely domestic conflict.5 The statute of the
bers of society. It establishes rules and proce- recently established International Criminal
dures that constrain the power of all parties, Court similarly incorporates this approach,
hold all parties accountable for their actions, defining genocide, crimes against humanity,
and prohibit the accumulation of autocratic or and a range of war crimes as international of-
oligarchic power. It also provides a variety of fenses over which the court will have jurisdic-
means for the nonviolent resolution of dis- tion even when committed in conflicts of a
putes, whether between private individuals, be- noninternational character.6
tween groups, or between these actors and the A second example of the evolution in inter-
government. In this way it is integrally related national law is the expanded acceptance of the
to the attempt to secure a stable peace. At a principle of universal jurisdiction over these
historic meeting in Copenhagen in 1990, the crimes, resulting in some countries asserting
thirty-five nations then composing the Con- the jurisdiction of their national courts to pro-
ference on Security and Cooperation in Eu- secute genocide, war crimes, or crimes against
rope (CSCE) affirmed this linkage, declaring humanity even when committed in an inter-
that “societies based on . . . the rule of law are nal armed conflict in a second country. In the
prerequisites for . . . the lasting order of peace, past decade, more than a dozen countries have
security, justice, and cooperation.”3 undertaken investigation or prosecution of for-
The shift from international to intranational eign nationals for such crimes allegedly com-
conflict engages the rule of law in two signi- mitted in their home countries.
ficant ways. First, international law is track- The shift from international to internal
ing and adapting to these new circumstances conflict also introduces a new problem in en-
through evolutionary changes in the rules of forcing the law vis-à-vis those who may com-
warfare. Many of the normative standards that mit these grave crimes. As required by the
had previously governed only wars between Geneva Conventions (to which almost every
states, proscribing a variety of wartime abuses country is a party), regular military forces in
as violations of international law, are increas- many countries receive basic instruction in the
ingly applicable to intrastate conflicts as well.4 international rules that govern their conduct
Sixty years ago, when the world held indi- and their treatment of combatants and citi-
viduals to account for war crimes and crimes zens even during times of war. In contrast, ir-
against humanity at Nuremberg, those crimes regular forces and insurgent groups engaged
were generally understood in international law in civil wars, to whom these international rules
as engendering liability only when perpetrated of conduct now apply, do not generally receive

any training in the laws of war. What are often will tend to consolidate peace and advance a
ragtag, young illiterate militia members in sense of confidence and well-being among
many countries need to be exposed to the people. . . . There is an obvious connection be-
norms by which they will now be held account- tween . . . the rule of law and . . . the achieve-
able. Exacerbating the problem, the govern- ment of true peace and security in any new
ments against which they are fighting are and stable political order.”7
often reluctant to have such insurgent groups
sign an agreement to adhere to the Geneva
Conventions or receive such training, lest such EMERGING INTERNATIONAL STANDARDS
steps be perceived as legitimizing the rebels. A
challenge in the coming years is the need to In recent years, international standards have
more effectively disseminate and enforce these evolved to define the meaning of the rule of law
rules vis-à-vis such nonstate actors. with ever-greater detail, providing an increas-
Yet another sense in which law is pertinent ingly nuanced road map for those engaged in
to the changed nature of war—and the princi- peacebuilding efforts. This articulation of ex-
pal focus of the present essay—is the central plicit standards results primarily from the con-
role played by the rule of law in establishing vergence of trends in two areas—democracy
stability and a durable peace following an in- and human rights—each of which is closely
tranational conflict. It is completely plausible related to, but distinct from, the rule of law.
—and often the case—that a classical war be- During the latter half of the twentieth cen-
tween two independent states can be resolved tury, one school of thought focused on demo-
and a durable peace developed without any cratic systems as the best guarantor not only
modification to the internal rules, structures, of freedom, but also of peace. (This school
or institutions of either party to the conflict. was largely, but not exclusively, the domain of
The 1980–88 war between Iran and Iraq could Western political conservatives who advocated
end and leave tyrannies firmly in place on both democracy in a Cold War context.) Extensive
sides. The border conflict between Peru and research demonstrated what was to some an
Ecuador and the Ethiopia-Eritrea war demon- obvious postulate: democracies are less likely
strate the same proposition. In none of these to go to war with one another than are totali-
six combatant countries did conclusion of the tarian or authoritarian regimes.8 But promot-
conflict necessitate any significant degree of ing democracy as a paradigm for the organi-
internal reorganization. On the other hand, re- zation of society invites further inquiry. How
solving violent conflicts between groups within does one create and ensure a democratic po-
a state and preventing their recurrence require lity? Answering this question requires a shift
the nurturing of societal structures and insti- from democracy as a macro concept to an ex-
tutions to assure each combatant group that amination of those specific institutional struc-
its interests will be protected through nonvio- tures and mechanisms that are essential to
lent means. This is rarely, if ever, possible democracy and that distinguish it from a non-
without attention to the establishment of the democratic system. The result is a recognition
rule of law. As stated by then UN secretary- and articulation of the basic elements of the
general Boutros Boutros-Ghali in his de- rule of law, which is the ultimate guarantor of
scription of peacebuilding, “Peacemaking and democracy.
peacekeeping operations, to be truly success- The human rights stimulus followed an
ful, must come to include comprehensive ef- opposite path of analysis, moving from the
forts to identify and support structures which specific to the general. Prompted in part by the

atrocities of World War II, international law, of law are generally understood to include the
as defined by the United Nations and various following:
regional organizations, provided guarantees ◆ A representative government in which the
for an ever-widening catalog of human rights.
executive is accountable to the elected leg-
Over time, however, the international human
islature or to the electorate
rights movement (dominated to some degree ◆ The duty of the government and security
by more liberal perspectives) increasingly rec-
forces to act in compliance with the consti-
ognized a basic fact: while an international
tution and the law
campaign could often free a political prisoner ◆ A clear separation between the state and
from detention, he or she could quickly be re-
political parties
placed by many new victims unless the system ◆ Accountability of the military and the po-
and the structures that permitted their abuse
lice to civilian authorities
were changed. Stated differently, fundamental ◆ Consideration and adoption of legislation
guarantees of individual human rights, already
by public procedure
provided in international law, could most ef- ◆ Publication of administrative regulations as
fectively be secured by more detailed guide-
the condition for their validity
lines on the institutions and procedures through ◆ Effective means of redress against adminis-
which these rights should be enforced. The
trative decisions and provision of informa-
result once again was a recognition of the need
tion to the person affected on the remedies
to elaborate on the meaning of the rule of law.
As a consequence, a growing corpus of UN ◆ An independent judiciary
conventions, resolutions, declarations, and re- ◆ Protection of the independence of legal
ports today elaborates standards on the rule of
law. Various regional organizations have simi- ◆ Detailed guarantees in the area of criminal
larly contributed to the articulation of these
guidelines. The Organization for Security and ◆ Compensation of victims of official abuse
Cooperation in Europe (OSCE) has produced ◆ Free and fair elections at regular intervals
a detailed definition of the institutional and ◆ Comprehensive rights of political
procedural elements of the rule of law—the
most comprehensive catalog of this sort ever ◆ Equal access and equal protection of the law
adopted by an international organization—
which serves as a standard for its fifty-five In elaborating the principle of the rule of law,
member states.9 The Council of Europe long some of these documents reiterate and expand
ago made adherence to the rule of law an ex- on traditional human rights commitments,
plicit requisite of membership in the organiza- including freedoms of association, religion,
tion and has similarly developed a sophisticated expression, and movement, and protection
series of standards. Both the Organization of against torture.
American States and the Council of Europe Beyond the articulation of standards on the
have developed and enforced their rule-of-law rule of law, there has been a vast expansion in
standards in part through the jurisprudence of recent years of assistance programs to facilitate
a regional commission and court on human their implementation, particularly in countries
rights. (In the case of the Council of Europe, emerging from conflict. Assessments, techni-
these two bodies were recently merged into cal assistance, training, expert consultations on
one.) Although there are variations in empha- drafting of legislative and regulatory reforms,
sis in the definitions articulated by different observer and advisory missions, and donation
sources,10 the obligations imposed by the rule of resources and materials for the enhancement

of the rule of law are now increasingly stan- nificant foreign assistance, rebuilding an ef-
dard features of the postconflict scene. Those fective justice system (or, in the case of some
providing such assistance routinely include countries, constructing one for the first time)
various agencies of the United Nations (in- will not occur overnight. The need to recruit
cluding in particular the United Nations De- and train investigators, prosecutors, judges,
velopment Programme, the Department of court administrators, police, and corrections
Peacekeeping Operations, and the Office of personnel; adopt needed legislative and regu-
the High Commissioner for Human Rights), latory reforms; develop a robust independent
regional organizations, the World Bank, sev- legal profession; put in place the material re-
eral bilateral governmental donors, and an as- sources and equipment necessary to the opera-
sortment of foreign nongovernmental organi- tion of the system; and create a culture of re-
zations.11 Lawyers in military peacekeeping spect for the law will generally take several
units have at times played an active role, and years at best. Postconflict evolution of the rule
there is an emerging recognition that peace- of law, like many other postconflict processes,
keeping forces may need to fill important rule- may be somewhat messy and slow; it has to be
of-law functions until the civilian contingents nurtured intelligently with a view to the long
are able to be deployed to assume those func- term and a strategy that extends well beyond
tions; in various peacekeeping operations, this the funding cycle of many foreign donors.
has included detaining suspected criminals, Even when the international community
gathering evidence, surveying the needs of the intervenes so thoroughly as to take over the
courts and the justice system overall, and dis- task of local judicial administration, it has been
seminating legal codes.There are so many pro- unable to satisfy all of its own rule-of-law stan-
viders of rule-of-law assistance that it has be- dards. A telling case in point is that of postwar
come common in many postconflict locations Kosovo, where the UN mission was vested
to convene rule-of-law donor coordination with all executive and legislative powers, and
meetings on a regular basis to share informa- foreign experts imported by the United Na-
tion, avoid duplication, and attempt to pro- tions were given the mandate to administer the
vide sequenced assistance in keeping with the system of justice. Even in this case, an Octo-
often-limited absorption capacity of postcon- ber 2000 report by the OSCE Kosovo office
flict local legal institutions. (Even with this complained of common practices in the UN-
heightened level of activity, the aggregate level run courts, and provisions of UN-imposed reg-
of resources available for postconflict legal re- ulations, that fell short of these international
building has generally been much less than standards.12
the amount needed, and donors often still Meaningful postconflict rule-of-law reform,
pursue differing agendas.) as implied earlier, requires attention to more
It must be kept in mind that the standards than the number of laws passed or courthouses
outlined here provide an important road map built.To be effective, there is a need for country-
for development of the rule of law in a post- and context-specific strategies that are informed
conflict society but are seldom maintained to by political, economic, and social realities and
perfection in circumstances that are so far from by local legal tradition. It requires engaging
perfect. In a country emerging from a pro- both the personnel of the justice system and
tracted and bloody civil war, the justice system the general public over an extended period. It
is generally in severe disrepair. Even if the also requires a recognition that serious rule-of-
courts had once been credible, the institutions law reform will impinge on the interests of var-
and personnel of the system have typically been ious powerful interests in the postwar setting;
destroyed or corrupted. Notwithstanding sig- this may include warlords, organized-crime

syndicates, tribal elders, and others whose in- model that did not assume disagreements be-
fluence will be affected by a transition to a more tween individuals and between groups.To forge
robust, transparent, and nondiscriminatory sys- a durable peace, it is necessary to channel
tem of justice. A program of technical tinker- those conflicts into a routinized and accepted
ing by those providing rule-of-law assistance mode of amelioration before they become vi-
will be inadequate to meet such challenges, olent and less tractable.13
which require sustained political will as well. In any country emerging from armed con-
The international capacity to provide timely flict, numerous claims and grievances will re-
legal assistance in such countries still has a main. These may include demands for pun-
ways to go but is developing in significant new ishing the perpetrators of war crimes and other
directions. It has often taken months to recruit, atrocities. Wars frequently displace large num-
train, and place on the ground the small num- bers of people, and the subsequent return of
ber of foreign personnel who will actually de- refugees or prisoners will often result in com-
sign and implement justice sector assistance. peting claims to property. In the postconflict
(In Afghanistan, for example, the primary rule- context, courts are also often called upon to
of-law post within the UN mission remained resolve disputes regarding the use of minority
vacant for over two years.) Recently, the Euro- languages or the eligibility of various factions
pean Union and the OSCE have each begun to participate in elections. Each of these is a
to put in place rapidly deployable civilian re- highly volatile issue, and it is imperative to
sponse capacity for rule-of-law needs. The avoid a scenario in which vigilantism raises the
United Nations and the U.S. government are risk of new cycles of violence. An independent
exploring the development of, respectively, a judiciary can provide a peaceful and trustwor-
ready roster and a pretrained civilian reserve thy means of addressing such claims. The ju-
corps to fill postconflict rule-of-law functions. diciary also addresses, of course, the normal,
everyday disputes between people, hopefully
contributing to an overall culture that resolves
SOME MAJOR STRUCTURAL its conflicts through such nonviolent means.
It is important to note that not every dis-
The rule of law incorporates many of the ele- pute is amenable to judicial resolution. Some
ments necessary to ease tension and lessen the points of conflict are purely political, not
likelihood of further conflict. While a compre- addressed by any law that the courts might
hensive review of all aspects of the rule of law apply. To make the courts the arbiter of such
is far beyond the scope of this essay, an exami- disputes—particularly if the judiciary is still a
nation of some of the major elements is war- fragile institution—risks politicizing the very
ranted to understand their vital role in post- institution that must be blind to politics, un-
conflict peacebuilding and conflict prevention. dermining the credibility and independence
of the judicial system. Several analysts have
An Independent Judiciary suggested that this sort of politicization char-
A primary requisite for the functioning of the acterized the Russian constitutional court in
rule of law, of course, is an independent judi- the early 1990s, rendering it a more high pro-
ciary. At the most fundamental level, the prin- file but less effective institution for facilitating
cipal purpose of the courts in virtually any sys- Russia’s difficult democratic transition.
tem is to serve as a forum for the peaceful Finally, it is important to avoid being too
resolution of disputes. Conflict and disagree- mechanistic or narrow when considering post-
ment are inevitable in any human system; it conflict judiciaries. In the postconflict phase,
would be foolhardy to construct an idyllic the formal justice system is generally weak

and, even with international aid and person- to a democracy is the hiatus in law enforce-
nel, has the capacity to handle only a relatively ment capabilities. A transitional period un-
small number of the most important cases. Ex- folds during which the old police and security
perience has shown that it will often take sev- forces (as well as the system of authority in
eral years to significantly expand that capacity. general) are eliminated or weakened, but the
On the other hand, various tribal, religious, or new order has yet to take hold. Retaining the
other traditional systems of justice often survive old police and judiciary, many of whom were
a prolonged conflict far more intact than the part of the problem rather than of the solution,
formal courts, and may be in a position to play undercuts the credibility of the new order and
a vital complementary role in providing justice could threaten the ability of the new govern-
and a nonviolent means for resolving disputes ment to manage the transition. At the same
during the postconflict phase. These systems time, as the recent experience in Iraq has vividly
are routinely more accessible to the local pop- demonstrated, the dissolution of an effective
ulation (both physically and financially) than police force can result in a dramatic deteriora-
the formal courts. In many countries, they also tion of the security environment and render
predate the formal system and may have deep the rule of law a far more distant goal. This is
roots in local culture. To resolve land disputes a delicate balance, requiring a careful process
or matters of family law, for example, local of vetting and reprofessionalizing the police
people may view customary bodies as the ap- and related forces.
propriate and traditional redress. In evaluating Under the best of circumstances, it takes at
and assisting postconflict justice, however, in- least a couple of years to train new personnel,
ternational actors have tended to ignore these establish new lines of command, and build a
customary systems, in part because they do not new and credible criminal justice system. In
necessarily comport with international rule- Russia, Haiti, South Africa, and El Salvador,
of-law standards. This is beginning to change, to cite a few examples, this time lag has re-
and aid providers and policymakers are ex- sulted in a security vacuum readily capitalized
ploring how to shape more holistic rule-of- upon by criminal elements. In each of these
law strategies that integrate and perhaps adapt four countries, the transition has produced a
these customary systems of justice. soaring crime rate; the same pattern occurs in
many other states in the postconflict phase.
Law Enforcement and Criminal Justice While people’s daily fear of being caught in
The rule of law requires a system of criminal the crossfire of war, or of being persecuted by
justice that deters and punishes banditry and the authorities because of their political views,
acts of violence, allowing the citizenry to live has dramatically receded, it has been partially
with a sense of security. At the same time, the replaced by a new fear of the thieves, gangs,
criminal justice system must be immune from and mafias that operate with relative impunity
abuse for political purposes and must adhere in the interim period. In some cases these new
to a lengthy list of internationally recognized criminals are demobilized combatants and
rights of criminal procedure.14 In other words, commanders of the conflict just ended, still
if societal tensions and the likelihood of fur- possessing their weapons but no new livelihood.
ther conflict are to be minimized, people must In El Salvador, for example, an official inquiry
become confident that they will not be abused determined that the death squads that killed
either by private sector criminals or by the thousands of leftists and moderates during the
authorities. war transformed themselves into new criminal
A problem confronting many countries bands following the conflict, unchecked and
emerging from war or from a repressive regime undaunted by an ineffective criminal justice

system. Organized-crime gangs similarly tempted to integrate this lesson, addressing

emerged out of former combatant units in the each of these points explicitly in the terms for
Balkans and Iraq. Uncontrolled, this dramatic the postconflict phase.16
rise in crime poses a very real threat to the sta- In addition, to confront some of the more
bility of the new peace. serious and complex criminal threats, includ-
Because of this vacuum of effective law en- ing in particular those posed by transnational
forcement, postconflict settings also provide and domestic organized-crime groups, it may
fertile ground for the growth of transnational be necessary to create specialized units, capac-
criminal operations. Once established, these ity, and legal tools within the justice system.
organizations then become difficult to uproot Development of such targeted concentrations
and can undermine the stability not only of of expertise and resources focused on these
the country in question but of other nations as more challenging categories of crimes may be
well. The postconflict absence of an effectively warranted with respect to all components of
functioning government in Kosovo provides a the criminal justice apparatus, including in-
poignant recent example. In January 2001, the vestigations, enforcement, prosecution, the
British government was obliged to send a spe- courts, and prisons, in order to track and pur-
cial criminal intelligence squad to Kosovo to sue these crimes more effectively. At the same
focus on the entrenchment of criminal gangs time, safeguards need to be in place to ensure
involved in smuggling illegal immigrants, pros- that specialized units and tools to confront se-
titutes, and drugs to Western Europe.15 More rious crimes stay within the bounds of the rule
recently, transnational criminal activities criss- of law.
crossing the borders of Sierra Leone, Liberia, Finally, international police operations have
and Côte d’Ivoire undermine efforts to build expanded significantly in the last few years,
stability and the rule of law in these three becoming commonplace in postconflict scenar-
countries. The void in law enforcement capac- ios to help fill this void in law enforcement. In
ity can also provide a handy environment for 2006, nearly 7,500 UN civilian police were
exploitation by international terrorist groups, authorized for deployment in nine postwar
as occurred in Somalia and Afghanistan. Fur- countries. The organization and fielding of
ther compounding this problem, the post- such police operations is gradually becoming
conflict government’s incapacity to deal ef- more professionalized, but numerous chal-
fectively with this threat may be viewed by lenges remain with respect to the recruitment,
outsiders as complacency toward transnational training, coordination, and accountability of
crime, which may in turn put at risk some of these forces in the future, as well as clarifica-
the international assistance and investment it tion of the law to be applied by them.
badly needs.
To address these problems, postconflict re- Transparency and Predictability
construction has to move quickly to establish It is accepted and proven that transparency
courts that are above corruption and intimida- and predictability of action by adversaries re-
tion by criminal elements; police forces need duce the likelihood of international conflict.
to be supported, and individual officers must Confidence-building measures have been in-
be held accountable for violations of the rule stituted to reduce tensions in a variety of re-
of law; and training and cleansing of the law gions, under which certain actions that might
enforcement and criminal justice systems need agitate an opposing party (e.g., troop move-
to begin promptly following the conflict. The ments or missile testing) can be taken only ac-
1995 Dayton Peace Accords to end the war cording to prescribed procedures that facilitate
in Bosnia and Herzegovina, for example, at- communication and reduce suspicion.

Traditionally, diplomats and those involved the details, as well as the implementation, to
in conflict resolution and conflict prevention be provided by the administrative bureaucracy
have applied this principle primarily to conflicts of the modern state.
between states. As conflicts have become in- In many countries, the average citizen will
creasingly intranational, however, the princi- most frequently experience the presence or ab-
ple is equally valid. Confidence and trust will sence of the rule of law (and will accordingly
be increased—and the potential for suspicion, feel less or more alienated from the system)
surprise, and tension reduced—when parties not through any interaction with the legisla-
are required to conduct their activities in the tive or judicial process, not through any in-
open. The rule of law requires that govern- volvement in broad constitutional questions,
ments adhere to principles of transparency and but through encounters with the administra-
predictability, and it establishes several mech- tive state. Resolving a problem with their social
anisms to ensure that this is so. These include security benefits, obtaining a license to run a
requirements that laws be adopted through an business and support their family, getting a
open and public process by a representative permit to build a house or a church or register
body, all regulations be published, no rules be a political party, obtaining state certification
applied retroactively, government agencies con- and funding for an ethnic language school—
duct their affairs according to prescribed rules, these are the sorts of events that bring most
and the whole system be subject to judicial people into contact with the state, and they
scrutiny to ensure compliance with these rules. are not generally in the purview of the legisla-
As articulated by the conservative Austrian- tive branch. Unless the rule of law is extended
born economist Friedrich von Hayek: to administrative decision making, these in-
teractions are unlikely to be subject to public
Nothing distinguishes more clearly conditions scrutiny and thus are open to corruption, ma-
in a free country from those in a country under
arbitrary government than observance in the
nipulation, and discrimination. For most na-
former of the great principles known as the tionals and foreign advisers engaged in recon-
Rule of Law. Stripped of all its technicalities, structing war-torn societies, administrative
this means that government in all its actions is procedure is hardly as glamorous as constitu-
bound by rules fixed and announced before- tion writing or elections, but they are ill ad-
hand—rules which make it possible to foresee
vised to neglect it, for it is in this realm that,
with fair certainty how the authority will use
its coercive powers in given circumstances and unnoticed, the seeds of grievance and confron-
to plan one’s individual affairs on the basis of tation may quietly, even unwittingly, be sown.
this knowledge.17 In Peru in 1984, some correlation was be-
lieved to exist between the level of public con-
Controlling the Bureaucracy fidence in the government on the one hand
Even when the relationship between securing and the effectiveness of the violent opposition
the rule of law and avoiding further conflict is on the other. Peru had a functioning demo-
recognized, attention and foreign assistance cratic legislature, with laws adopted and pub-
tend to focus fairly exclusively on the courts lished following public debate; to the casual
and the legislature. These may be the primary observer, the system adhered to the rule of law.
institutions, but as technology advances and as Despite this appearance, economist Hernando
society becomes more complex, parliaments de Soto found that 99 percent of the rules
are able to address a decreasing proportion of governing daily life in the country never went
the issues with which governments must deal. through the legislative process. They were, in-
Legislative bodies can generally paint only with stead, the result of regulations issued by exec-
broad brushstrokes, leaving more and more of utive branch agencies, a process that was not

subject to public participation, procedural ◆ ◆ ◆

controls, or any oversight, and that was con-
sequently highly corrupt.18 At the start of the Those involved in postconflict peacebuilding
twenty-first century, this kind of situation is and the rule of law will often need to confront
not unique to Peru. Insofar as the power of two challenges of particular urgency for the
these administrative bureaucracies continues process of societal reconstruction: accounta-
unchecked in the postconflict period, it makes bility for past abuses and construction of a
it more likely that individuals and groups will new constitutional order.
feel disenfranchised from the system, individ-
ual and national economic growth will be ham-
pered by corruption, and administrative regu-
lations or decisions may discriminate on the
basis of political affiliation, ethnicity, religion, A basic question confronting many societies
race, or geography. in the postconflict phase is how to deal with
the legacy of massive abuses that may have
Other Institutional Elements been inflicted by those on each side of the
Although it is beyond the scope of the present conflict. The worst of these offenses are those
essay to discuss all the structural components classified by international law as war crimes,
required for a justice system to function, an crimes against humanity, and genocide. Na-
important lesson to emerge from postconflict tions also need to come to terms with the
experience over the past two decades is that question of accountability for those abuses
the rule of law will not be viable if any one of its that, while not constituting such interna-
core components lacks adequate capacity. To tional crimes, still give rise to deeply felt re-
establish an effective criminal justice system— sentment and antagonism in the postconflict
always a priority in the postconflict period— phase. Some of these abuses may have been
assistance to the courts will be wasted unless perpetrated in the heat of the conflict; others
efforts are also taken to ensure a professional may have taken place earlier, fanning the re-
and law-abiding police force, prison system, sentments that led to the conflict. A variety of
and criminal defense bar, all governed by a co- approaches need to be considered in contem-
herent legal framework. While the link to basic plating the issue.
security concerns makes criminal justice a top
priority, mechanisms to deal with adjudication Criminal Accountability
of financial claims, property disputes, and ad- Some argue that not only are the trial and
ministrative law challenges are also needed for punishment of these offenses essential to
postconflict progress. In addition, assistance achieve some degree of justice, but that a pub-
to these various components should be pro- lic airing and condemnation of the crimes are
vided in a coordinated manner, and the various the best way to draw a line between times past
institutional components need to understand and present, lest the public perceive the new
their respective functions as part of a holistic order as simply more of the same. A minority
system. Whether in Afghanistan or the Pal- claim that these are simply show trials unbe-
estinian Authority, for example, turf battles fitting a search for peace and democracy, that
between the Ministry of Justice, the attorney a public review of wartime atrocities will in-
general’s office, and the Supreme Court have flame passions rather than calm them, and
had severely dysfunctional consequences for that the best way to rebuild and reconcile the
efforts to strengthen the rule of law, diluting nation is to leave the past behind by forgiving
the value of international aid. and forgetting the sins of all parties to the

conflict. As noted earlier, the latter argument bodia in the 1970s. (Nearly thirty years after
has been rejected by international law. the killing fields, a special tribunal is now being
In many countries, prosecutions for abuses put in place in Phnom Penh to prosecute some
committed during the conflict can serve sev- of those cases.)
eral functions. They provide victims with a When prosecutions are undertaken, how
sense of justice and catharsis—a sense that their widely should the net be cast in imposing
grievances have been addressed and can more sanctions on those who committed war crimes
easily be put to rest rather than smoldering in or similar abuses? How high up the chain of
anticipation of the next round of conflict. In command should superiors be responsible for
addition, they can establish a new dynamic in wrongs committed by their underlings? Con-
society, an understanding that aggressors and versely, how far down the chain should sol-
those who attempt to abuse the rights of oth- diers or bureaucrats be held liable for follow-
ers will be held accountable. ing the orders of their superiors in facilitating
Because these trials tend to receive much these abuses?
attention from both the local population and International legal standards are evolving
foreign observers, they often provide an impor- that help address these questions; at least for
tant focus for rebuilding the judiciary and the the most heinous violations of human rights
criminal justice system in accordance with rule- and international humanitarian law, a sweep-
of-law principles. Perhaps most important for ing amnesty is now understood to be imper-
purposes of long-term reconciliation, this ap- missible.19 On the other hand, offenses like
proach underscores that specific individuals— genocide or crimes against humanity generally
not entire ethnic or religious or political groups require the participation of a vast number of
—committed atrocities for which they need to people, and international law does not demand
be held accountable. In so doing, it rejects the the prosecution of every individual implicated
dangerous culture of collective guilt and retri- in the atrocities. Putting all of the hundreds
bution that too often produces further cycles and sometimes thousands of such individuals
of resentment and violence. on trial, whether before a local or international
The issue of accountability versus impunity court, would be financially, politically, and lo-
not only is relevant to the resolution of con- gistically untenable. A symbolic or representa-
flict within a war-torn country; it also may tive number of prosecutions of those most
have grave consequences for future, seemingly culpable may satisfy international obligations,
unrelated conflicts in other parts of the world. especially if an overly extensive trial program
In explaining his confidence that he could would threaten the stability of the country.
proceed with his diabolical campaign of geno- The Special Court for Sierra Leone, for ex-
cide without fear of retribution by the inter- ample, is limited to prosecution of those “who
national community, Adolf Hitler is infamously bear the greatest responsibility for serious vio-
alleged to have scoffed, “Who remembers the lations of international humanitarian law” and
Armenians?”—referring to the victims of a specified crimes under Sierra Leonean law;
genocide twenty-five years earlier for which accordingly, even though large numbers of
no one had been brought to account. Recent combatants participated in gruesome atroci-
evidence suggests that the Bosnian Serb lead- ties, the Special Court has issued indictments
ership, in pursuing a campaign of ethnic against just thirteen people. Often, the chal-
cleansing and genocide in the 1990s, was em- lenge of numbers is addressed by using differ-
boldened by the fact that the Khmer Rouge ent mechanisms to deal with (1) the leaders,
leadership had never been prosecuted or pun- those who gave the orders to commit war
ished for the atrocities it committed in Cam- crimes, and those who actually carried out the

worst offenses (inevitably the smallest cate- justice system in a reasonable amount of time.
gory numerically) and (2) those who perpe- To compound the problem, Rwanda’s crimi-
trated serious abuses but do not rise to the nal justice system was decimated during the
first category. In East Timor, perpetrators of genocide, as most lawyers and judges were
minor crimes (generally property offenses) killed, in exile, or in prison. By 2004, the
could apply to participate in a “community Rwandan courts had actually processed more
reconciliation process” in which they con- than 7,000 genocide cases—a herculean feat
fessed to their offense in a local public hearing, matched by virtually no society in history, let
and the local community decided on an ap- alone one still reeling from destruction—in
propriate form of community service for the proceedings that were evaluated as generally
applicant, ranging from an apology to a fine to fair by independent observers, including those
rebuilding a property he had burned down representing the defense. As impressive a
during the 1999 violence in East Timor. Per- record as this is, however, and notwithstand-
petrators of war crimes, crimes against human- ing the importance of a rhetorical commit-
ity, murder torture, or rape, on the other hand, ment to put every perpetrator of gross abuses
were ineligible for this process and were subject in the dock, 125,000 genocide defendants were
to the jurisdiction of a “Serious Crimes Unit” never going to be tried in Rwanda, and during
established to investigate and prosecute these the several years it was attempted, this task
major abuses. largely monopolized the justice system and
The Rwandan case demonstrates the need delayed progress on other matters crucial to
for pragmatism to temper an absolutist ap- social reconstruction.
proach to prosecution. For decades, elites The Rwandan solution has been to move
maneuvering for power manipulated ethnic the overwhelming majority of the caseload to
rivalries between Hutu majorities and Tutsi a new village-level system called gacaca, loosely
minorities for political ends, without any fear based on an indigenous model of traditional
of being called to account for their actions. justice. The program does not satisfy all the
This culminated in 1994 in one of the most criteria set by international standards relating
horrific genocidal massacres in recent mem- to criminal defense rights and fair trials; de-
ory, as between 800,000 and 1 million Tutsis fense lawyers are not permitted, the judges of
and moderate Hutus were brutally slaugh- the more than 12,000 gacaca courts lack legal
tered in just fourteen weeks. training, and there have been allegations of
To break this cycle of violence, the new witness intimidation. On the other hand, most
Rwandan government correctly insisted that Rwandans in the justice system feel they have
it was necessary to replace the endemic culture no alternative: the caseload cannot be handled
of impunity with a sense of accountability. To by the courts in any timely manner; it is polit-
achieve this, many senior members of the new ically not an option to simply throw open the
government insisted throughout their first year prisons and release more than 100,000 alleged
in office that every person who participated génocidaires; and it is not acceptable to con-
in the atrocities should be prosecuted and tinue to keep people locked up for years with-
punished. The result was the multiyear pre- out trial. Although it will be controversial,
trial detention of some 125,000 alleged géno- Rwandans argue that the gacaca program will
cidaires in prisons built to house a small frac- engage local villages in the process of justice
tion of that number—far fewer than the total (attendance is actually compulsory), return and
number of potential defendants but vastly reintegrate perpetrators into their home com-
more than the number of genocide cases that munities, and empty the prisons of untried
could be handled by the most robust criminal cases within a relatively short time. Perhaps of

most concern are the staggering projections stitutions of the new order. That confidence
by some senior government and gacaca sys- can be seriously undercut if these institutions
tem officials that rather than reducing the case- are staffed by the same personnel who gave rise
load, the gacaca process will ultimately identify to old resentments. Those who kept the en-
and process some 750,000 genocide defen- gine of a now-ousted government running
dants—a tenth of the Rwandan population may be perceived as of uncertain loyalty. Even
—compounding rather than relieving the chal- though they are not liable in a criminal sense,
lenge of numbers.20 those who facilitated past abuses should not
Given the complexity of the imperative to be permitted to infect or represent the new
deliver adequate criminal justice for past grave governmental structures. On the other hand,
abuses, reasonably clear objectives need to be if people have not personally been involved in
established early on. Although the answer to past abuses, then some of these people may be
“How much is enough?” may change during vital to national reconstruction in the imme-
the course of a nation’s transition, and although diate postconflict phase, with knowledge and
the question will continue to be a point of de- experience that will be useful in making the
bate both in the international community and new order function.
within countries where massive atrocities have In El Salvador, the peace agreement pro-
occurred, experience over the past few decades vided for a special commission, which identi-
in several transitional countries suggests the fied one hundred senior military officers for
need for flexibility and realism in the quest for retirement due to their implication in past
criminal accountability for such horrific of- human rights abuses. In Bosnia, the Interna-
fenses. Concern for the needs of victims is not tional Police Task Force was tasked with ex-
best served by encouraging them to mistak- cluding from the newly reconstituted local
enly assume that every perpetrator will be police any candidate who had previously en-
brought to trial when this is clearly not possi- gaged in abuse of ethnic minorities. Even if
ble. Similarly, the interest in quickly establish- such individuals are not prosecuted for their
ing an effective justice system will not be best crimes, permitting them to occupy positions
served by overwhelming the entire system for in which their presence would be cause for a
years with nothing but atrocity cases. Ex- sense of insecurity among their former victims
empting all perpetrators from justice is morally, would be unjust and would detract from peace-
and now legally, unacceptable, but subjecting building efforts.
every participant in an extended campaign of Administrative purges do not, however,
mass abuses to trial will usually be impossible. provide the same level of due process protec-
A careful balance will be needed in each case, tion as does a criminal proceeding. Because they
based on the crimes committed and numbers involve a large number of people, purges tend
involved, the capacity of the criminal justice to be conducted in summary fashion. In stress-
system, local culture and priorities, and avail- ing the importance of individual responsibility
able resources. and accountability, the rule of law rejects any
notion of collective guilt. When large numbers
Cleansing the Structures of Government of people are removed from their places of em-
Holding individuals accountable will usually ployment solely because they had worked there
entail more than criminal trials. In many coun- during the conflict or because of their mem-
tries, limitations may be placed on participa- bership in a particular political party, without
tion in the public sector by those associated any demonstration of individual wrongdoing,
with past abuses. A durable peace requires the they may legitimately cry foul and question
establishment of public confidence in the in- the democratic underpinnings of the new

government. Rather than contributing to rec- sowing seeds of resentment that can result in a
onciliation and rebuilding, such purges may new round of violence. The Bosnian war dis-
create a substantial ostracized opposition that played unresolved issues of history and resent-
threatens the stability of the new system. In ment dating back some seven centuries; a
Iraq, a major controversy has been ongoing decade after the war, the country’s next gener-
over precisely this point for more than three ation is being socialized into one of three com-
years, often pitting Sunni against Shiite con- peting Bosniak, Serb, or Croat realities identi-
stituencies, in the context of the appropriate fying their own ethnic group as victims and
scope of exclusion from public positions the other two as perpetrators of atrocities dur-
through “de-Ba’athification.” In some cases, ing the conflict in the 1990s.
the dislocational effects of such a measure have As a consequence, in addition to the focus
been tempered by limiting any ban on public on individual perpetrators, establishing an offi-
service by implicated individuals to a cooling- cial overall accounting of the past is often an
off period of a few years, permitting their important element to a successful transition,
reentry only after the initial postconflict phase providing a sense of national justice, reckoning,
and after stable and trustworthy public insti- and catharsis. Fairly conducted criminal trials
tutions are in place. In other instances, people are one way to establish the facts and figures of
are appointed or reinstated on a probationary past abuses; the formation of a “truth commis-
basis, to monitor and verify their adherence to sion” is another. While the two processes can
the norms of the new democratic order. complement each other, a truth commission
Although they vary from country to coun- may be all the more useful for healing and rec-
try, such vetting efforts, sometimes referred onciliation if the country is not equipped to
to as “lustration,” routinely target a far larger conduct fair and credible trials. Long-term
number of offenders than do most programs reconciliation requires a careful examination of
of criminal trials, but they have not received the mix that will best fit the society in question.
adequate attention. In the next few years, sig- In El Salvador, the twelve-year civil war
nificant work will be needed to develop guide- between the government and the Farabundo
lines on how best to strike the right balance and Martí National Liberation Front (FMLN)
design vetting programs that do not constitute left some 75,000 people dead. “As the peace
simple political purge programs but that in- negotiations advanced, the charges and coun-
stead legitimately cleanse the structures of tercharges relating to [atrocities committed by
government and contribute to the establish- each side] threatened to become serious ob-
ment of the rule of law. stacles to any peaceful resolution of the con-
flict. It was soon recognized, therefore, that
Establishing a Historical Record the hate and mistrust built up over the years
In the transitional period after an intrana- required . . . some mechanism permitting an
tional conflict, history is always controversial. honest accounting of these terrible deeds.”21
Each side will still have its defenders who will At the war’s conclusion in 1992, the judiciary
deny that the abuses of which it is accused was intact, but it was highly politicized and
ever took place, will claim that they were actu- compromised and incapable of credibly ad-
ally perpetrated by others, or will suggest that dressing the difficult issue of accountability
they were justified by exigent circumstances. for war crimes or egregious violations of hu-
Left uncontested, these competing claims may man rights in an objective manner. The three-
undermine the new order and the effort at member United Nations Commission on
peacebuilding; they may also add insult to the the Truth, established by the peace agreement
injury already inflicted on the victims, deeply between the warring parties, was seen as an

alternative vehicle through which to attain sible, at the role of various sectors, through acts
some sense of justice and accountability.22 of omission and commission, in engendering
Although not a court, the commission— the environment for these offenses to occur
like similar entities that have been created in —be it the security forces, religious leadership,
several countries facing a legacy of abuses on the media, the educational system, the judi-
a mass scale—investigated and reported on ciary, and so on. Based on their analysis, they
abuses that had been committed by both sides have been tasked with developing detailed
during the war, giving both victims and per- recommendations for appropriate govern-
petrators an opportunity to make their testi- mental and societal reforms. Truth commis-
mony part of the official record. Because of sions established or contemplated in postcon-
the absence of a credible criminal justice sys- flict settings have recently been charged with
tem, the commission also felt obliged to render developing ways to contribute to the process
certain judgments in its 1993 report that would of reconciliation. In Guatemala, where a civil
otherwise have been left to the Salvadoran ju- war raged for thirty-five years and cost more
diciary. A prime example was the commis- than one hundred thousand lives, the peace
sion’s decision to publicly name those individ- agreement provided for appointment of a
uals it determined were guilty of particularly truth commission and stressed the importance
egregious abuses, even though the commis- of establishing the “whole truth” about past
sion process had not afforded these individ- abuses by all parties, presenting this as part of
uals all the due process protections to which a process that “will help lay the basis for a
they would be entitled in a judicial proceeding. peaceful coexistence” and that “will eliminate
Had a credible national justice system been all forms of retaliation or revenge as a pre-
functioning, the commission might have kept requisite for a firm and lasting peace.”24 In
all such names confidential in its report and Bosnia, if a truth commission is established,
instead turned them over to the authorities for all stakeholders have agreed that its mandate
prosecution.23 In its report, the commission will include a requirement, in the context of
analyzed the ways in which the militarization documenting the atrocities that occurred, to
of Salvadoran society had eviscerated all three also expose the positive stories of individuals
branches of government; it also made recom- on all sides of the conflict who took risks to
mendations to enhance the prospects for each protect fellow citizens from other ethnic
of these institutions and the military to func- groups from abuse.
tion in accord with the precepts of the rule
of law. The Need for an Integrated Approach
Truth commissions have provided a forum Massive and systemic atrocities are often an
and voice for the hundreds or thousands of vic- outgrowth of complex problems in a society,
tims who will never be called to testify at trial. or they contribute to the creation of the same.
More than 20,000 victims in South Africa, They are not generally amenable to simplistic
22,000 in Morocco, 17,000 in Peru have pro- solutions. It has become increasingly clear that
vided their accounts to the truth commissions effective postconflict peacebuilding generally
in those countries, ensuring that what hap- requires not one of the mechanisms outlined
pened to them or their relatives or colleagues here, but a nuanced and integrated approach
is acknowledged and woven into the fabric of that combines and sequences various ap-
the nation’s official history. Truth commis- proaches to address the particular case. For
sions have been used in several countries to more than two years in postwar Bosnia, many
look not simply at individual cases, but also at argued that a truth and reconciliation commis-
the systemic problems that made abuses pos- sion should be created, as a complementary

process to the work of the International and redistributes power within the country,
Criminal Tribunal in the The Hague, to pro- both its substantive provisions and the process
vide a forum for thousands of victims, to de- by which it is created can play a significant
velop recommendations for systemic reforms, role in the consolidation of peace.
and to undertake other tasks. The effort was When a constitution is drafted and imposed
stymied by those who insisted that no such by a small group of elites from the victorious
body should be established until conclusion of party, a foundation may result that is not only
the tribunal’s work.The result would have been less democratic but also less stable. While pow-
an implicit statement that, if a postconflict so- erful elite factions will play a dominant role in
ciety is determined to be incapable of con- any postconflict constitution-making process,
ducting its own credible war crimes trials and it is important to reduce their monopolization
the function is assumed by the international of that process and to avoid a final constitu-
community, that society should then be blocked tion that simply reflects a division of the spoils
for several years from pursuing any other pro- between such factions. If the constitution and
gram to deal with its own troubled past. Sim- the process of its adoption are to play a posi-
ilarly, in Sierra Leone, the 1999 Lomé peace tive role in transforming society, then con-
agreement provided for establishment of a straints on such monopoly of power need to
truth and reconciliation commission. Subse- be built into the process.
quently, the UN Security Council mandated In an alternative scenario to such closed-
the establishment of a special war crimes court door division of spoils, constitution making can
in Sierra Leone—at which point many inter- involve a process of national dialogue, allow-
national actors suggested that the commission ing competing perspectives and claims within
effort could be abandoned. Ultimately, both the postwar society to be aired and incorpo-
bodies were established. rated, thus facilitating reconciliation among
Increasingly, however, while truth commis- these groups. It can also be a process of na-
sions may precede prosecutions as they did in tional education with respect to concepts of
Argentina and Chile, function concurrently government, the problems and concerns of dif-
with trials as in Sierra Leone and East Timor, ferent groups within the country, the develop-
or follow initial trials as may occur in Bosnia, ment of civil society and citizen responsibility,
they are understood to be not alternatives but and international norms of human rights,
complements to criminal trials, serving a dif- nondiscrimination, and tolerance that have
ferent but often vital function for societies in been incorporated into recent constitutions.
transition. In short, the process of constitution making
can contribute to peace and stability.25
To provide the best chance of success in
THE CONSTITUTION-MAKING PROCESS this vital endeavor, there should be broad na-
In many countries in transition from civil war tional agreement on the constitutional process.
to a new government, one of the first impor- This is frequently characterized by two ele-
tant tasks is drafting a new constitution. The ments, as seen with increasing regularity in
constitution is, of course, the foundational legal the constitutional processes of a variety of post-
document from which the entire national sys- conflict or transitional countries. The first el-
tem of rules will derive; it is the cornerstone ement is an articulation of the rules, details,
for the rule of law. In addition, insofar as the and timetable of the constitutional process.
constitution enshrines the vision of a new so- Having such a framework from the outset fa-
ciety, articulates the fundamental principles by cilitates greater transparency and public credi-
which the political system will be reorganized, bility with respect to the steps in the constitu-

tional process. It enables all actors—including tion. Such an approach, however, has conse-
not only the members of a constituent assem- quences for the duration of the process. A
bly or constitutional commission, but also civil rapidly adopted constitution will generally
society organizations, the media, and the gen- only reflect a deal between the powerful. A
eral public—to know what to expect, how to more open and extended process that provides
monitor the process, and how and when they an opportunity for other groups and civil soci-
can provide input to the constitution-making ety in general to challenge and debate and in-
process. The second element is a set of funda- fluence the process is far less efficient in the
mental principles to which the new constitu- short run. It takes longer and costs more. For
tion must adhere. These principles typically this reason, the international community has
include human rights such as freedom of reli- frequently sought to expedite the process, at
gion and expression; freedom of assembly; times to the detriment of the constitutional
nondiscrimination on the basis of gender, reli- result. In Cambodia, for example, the Paris
gion, nationality, or belief; and the guarantee Peace Accords of 1991 provided that the
of a range of rights in the criminal justice sys- constitution-making process should be com-
tem. They may also include the organization pleted in a period of ninety days. Although a
of the state and the relationship between the very limited effort at national dialogue and
branches of government, or other substantive input from certain groups occurred during
bargains that have been agreed to by the par- this time, analysts of this process have unani-
ties at the outset. In some cases, such as South mously taken the view that this period was
Africa, the new draft constitution may be made clearly too short, particularly given the lack of
subject to judicial review by a constitutional human resources resulting from the Cambo-
court to ensure that it in fact comports with dian genocide and the impossibility generally
these fundamental principles. These interim of conducting an effective constitution-making
arrangements can establish adequate political process under such time constraints even in
space to enable all stakeholders to participate the most ideal of circumstances. Some have
in the process and debate even hotly conten- suggested that the rushed nature of the
tious constitutional issues in an atmosphere that process contributed to the weakness of the
safeguards their rights and interests during system created under the constitution, and the
the development of a final constitution and coup d’état of 1997 has lent credence to that
permanently thereafter. view. In East Timor, only one month was allo-
This initial package of temporary rules, cated to the public consultation component of
whether in the form of an interim constitu- the constitutional process; several months later
tion or otherwise, will typically be the product when the process was seen to have failed, a new
of negotiations between key factions (in con- round of public consultation was conducted.
trast to the more broadly based and open con- Developing a constitution through this pro-
stitutional process to follow). As a consequence, cess of national dialogue, however, is far less
pressure from outside groups, including inter- efficient than the alternative model, in which
national institutions and donors, is important the terms of this crucial social compact are
to producing a set of rules that will enable a determined by a small group behind rela-
robust and democratic process to follow. tively closed doors and handed down to the
Meaningful public participation is increas- people like contemporary tablets from Mount
ingly regarded as an essential ingredient to en- Sinai. A drawn-out process of constitution
sure the legitimacy of the constitution-making making could be destabilizing, for example, if
process and to ensure real public ownership it means a lengthy transition governed by no
of the process and of the resulting constitu- basic rules or a transition still governed by an

old constitutional system that had exacerbated amended no less than 25 percent of the arti-
the conflict. In such situations interim arrange- cles in the draft before finalizing the text and
ments may first be needed for the consolida- submitting to parliament and then to public
tion of peace. Such was the case in South referendum.
Africa, where a negotiated interim constitu- In country after country, the public has
tion established the basis for transition, and a demonstrated that, when given an opportunity
lengthier process then followed to debate the to participate in the shaping of the supreme
tough issues and develop the final document. law and social compact by which their nation
Constitution making in South Africa pro- will be governed, they will seize the opportu-
vides an example of the usefulness of this ap- nity. An informed and engaged citizenry is a
proach. During one session in the spring of requisite for the rule of law. In South Africa,
1995, for instance, the Constitutional Assem- those organizing the constitutional process em-
bly spent hours deliberating over provisions in braced the principle of public participation and
the new draft constitution concerning the se- thought they might need to process as many
curity forces in the new South Africa, hardly a as a couple thousand inputs; instead, the con-
minor or noncontroversial topic for opponents sultation process resulted in an astounding two
emerging from years of conflict. A variety of million public submissions. In Iraq, notwith-
sensitive issues—such as emergency powers standing the high level of violence that re-
and their limits, the authorization of soldiers stricted the possibilities for public forums and
to disobey orders that violate international outreach, the constitutional commission re-
law, and civilian control of the security forces ceived some 400,000 public submissions. Ow-
—were all respectfully discussed and debated ing to the overly brief time line allotted for the
by former enemies now in parliament, ranging constitutional process and the insufficient ca-
from Pan-African Congress members on the pacity of the commission staff, however, there
left of the political spectrum to those of the was no opportunity to review these submis-
Freedom Front on the right. Several partici- sions or in any way have them taken into con-
pants subsequently acknowledged that as little sideration by the constitution drafters.
as a year earlier, such a discussion would have While robust public participation will
been inconceivable.26 In the context of the strengthen the constitutional system that
transition, however, the lengthy Constitutional follows, a lesson of past cases is that the con-
Assembly process (made possible by an interim stitutional process also needs to build in insti-
constitution and rules for the process) provided tutional and political mechanisms to ensure
an important avenue for previously violent constitutional implementation. In Eritrea, fol-
adversaries to negotiate and collaborate in con- lowing a thirty-year war for independence, the
structing each piece of their new order. constitution-making process was intention-
In Albania, broad-based civic education and ally structured to facilitate the consolidation
public consultation regarding the constitution of peace—a two-year effort that was proclaimed
included radio and television programs and “a historic process of a coming together of Eri-
telephone call-ins, dissemination of pamphlets treans for a creative national discourse.”27 The
and newspaper serials on constitutional issues, Constitutional Commission included a vari-
essay contests, and public forums throughout ety of religious, ethnic, and regional con-
the country that focused on various constitu- stituencies. Offices were established in five
tional questions. As a result of extensive com- regions of the country, with an additional of-
ments from members of the public on a draft fice responsible for involving the estimated
constitutional text published by the Albanian 750,000 Eritreans living abroad in the process.
constitutional commission, the commission The Constitutional Commission adopted a

strategy “which involves the widest possible In some instances, the solution has been to
public consultation, a strategy which eschews pursue justice through the medium of an inter-
the top-down approach.”28 Discussions were national entity. In El Salvador, for example,
initiated through an extensive series of civic the country’s relatively small population was felt
education seminars, debates, and town and vil- to be too polarized to achieve any consensus
lage meetings reaching more than a hundred on the abuses committed during the conflict.
thousand people. Pamphlets, newspapers, tele- As a consequence, the UN truth commission
vision, and radio were used to facilitate public was composed entirely of non-Salvadorans in
education and dialogue. Articulation of basic order to achieve a degree of neutrality, objec-
principles and of a draft constitution was the tivity, and acceptability that could not be gar-
subject of further public debate and input. nered by any domestic body at that early stage
Nine years after its adoption, although the re- in the transition from war.
sulting national charter has deep public sup- The United Nations Security Council cre-
port, an authoritarian government has not yet ated two international criminal tribunals to
implemented the constitution. respond to civil war and genocide in Rwanda
Finally, it is essential to recognize that not and the former Yugoslavia—the first such bod-
all of society’s problems can be resolved through ies established since the Nuremberg tribunal a
the constitution. As was suggested earlier with half-century earlier. Several factors militated
respect to the courts, viewing constitution in favor of internationalizing the response in
making as a means of redressing all group griev- these cases:
ances may force onto the plate issues that are ◆ The crimes were so horrific and so great
not appropriate to this process. This can result
a challenge to basic precepts of interna-
either in rejection of the process by disgrun-
tional law
tled factions or inclusion of promises in the ◆ The need for justice as an essential ingredi-
new document that cannot be fulfilled, either
ent in achieving reconciliation and break-
of which would damage the credibility of the
ing the cycle of violence was so apparent
process and of the new constitution. ◆ The domestic justice systems (particularly
Enabling a broad spectrum of society to
in Rwanda) were so thoroughly decimated
participate in shaping the compact means that
the process will take longer to complete, entail In addition, an international tribunal was
higher administrative costs and greater debate, better positioned than a domestic court to (1)
and possibly result in some compromises that convey a clear message that the international
might otherwise be avoided. On the other community will not tolerate such atrocities,
hand, it can also produce a constitutional system hopefully deterring future carnage of this sort,
that is more widely understood and accepted, not only in Rwanda and Bosnia but world-
more stable, and more supportive of peace. wide; (2) be staffed by experts able to apply
and interpret evolving international law stan-
dards; (3) be more likely to have the necessary
HOW LARGE A FOREIGN ROLE? human and material resources at its disposal;
As noted, while the challenge of demonstrat- (4) function—and be perceived as functioning
ing a new beginning founded on justice and —on the basis of independence and impar-
the rule of law will present itself very early in tiality rather than retribution; (5) advance the
the postconflict phase, constructing new insti- development and enforcement of international
tutions and training new lawyers, judges, po- criminal norms; and (6) obtain jurisdiction
lice, and other personnel can take years. This a over many of the worst perpetrators who were
recurring quandary. no longer in the country. The two tribunals

have produced several important advances in state is relieved of the need to face these issues,
the understanding and treatment of war crimes, leaving them to be handled and concluded by
crimes against humanity, and genocide. outsiders (and therefore easily disowned by
In rare circumstances such as these, creat- local leaders if that becomes politically expe-
ing an international entity to provide a sense dient), then the experience may contribute less
of justice has served vital goals. In the vast ma- to a durable peace and the entrenchment of
jority of instances, however, this should only the rule of law.
be the second choice. Even in cases such as A UN Commission of Experts that pre-
Rwanda and Bosnia, where the establishment ceded creation of the Rwanda tribunal ac-
of international criminal tribunals was appro- knowledged this point, noting that domestic
priate, durable peace requires that robust do- courts could be more sensitive to individual
mestic institutions be established, developing cases and that resulting decisions “could be of
within the states in question the capacity to greater and more immediate symbolic force,
undertake efforts at justice and reconciliation. because verdicts would be rendered by courts
Although it is hardly a zero-sum equation, the familiar to the local community.”29
relative allocation of resources makes a state- Two developments suggest a gradual ac-
ment regarding international priorities in the knowledgment of the priority to be given to
area of postwar justice and the rule of law: domestic ownership of the process. First, since
total contributions to the two international tri- 1995, there has been no purely international
bunals has been more than $2 billion; at some body established, à la the El Salvador commis-
$250 million per year, they represent more sion or the Yugoslavia and Rwanda tribunals.
than 15 percent of the ordinary UN budget. Instead, where an international role (beyond
Allocations during this same period to de- support and assistance) is deemed necessary,
velop the legal institutions within the coun- the trend has been toward creation of hybrid
tries in question have been a small fraction of international-domestic bodies, with local mem-
that amount. bers generally forming the majority. Examples
Whether accountability and justice are include the truth commissions in Guatemala
achieved through a court or through a truth and Sierra Leone, and hybrid courts in Cam-
commission, they are generally best achieved bodia, Sierra Leone, and Bosnia. Second, unlike
through a domestic process managed by the the international tribunals for the former Yu-
country in question. If it can be conducted in goslavia and Rwanda, which were given pri-
accord with the protections afforded by the macy of jurisdiction that trumps the ability of
rule of law, prosecution before domestic courts any domestic court to pursue a prosecution,
can enhance the legitimacy of the new post- the statute of the new International Criminal
conflict government and of the judiciary, be Court (ICC) correctly shifted that primacy.
more sensitive than outsiders to nuances of the The ICC is complementary to national justice
local community, emphasize that the nation will systems and can assert its jurisdiction only
henceforth hold all individuals accountable over a case of genocide, war crimes, or crimes
for their crimes, and stress a viable alternative against humanity when the national system is
to vigilante justice. In addition, the state and incapable of or unwilling to do so.30
the body politic will generally be most likely Similarly, there is a growing recognition
to integrate these lessons of justice, accounta- that the rule of law requires local ownership.
bility, and reconciliation following a cathartic Outsiders can and should provide substantial
domestic process that includes representatives levels of assistance, but they cannot descend
of all parties. This internalization is extremely upon a country for a year or two and magically
important to building peace. Conversely, if the impose a viable system and culture of respect

for the rule of law. “While the international national, establishing the rule of law plays an
community is obliged to act directly for the increasingly critical role, particularly in the
protection of human rights and human secu- immediate postconflict construction of peace.
rity where conflict has eroded or frustrated the There are those who, even today, imply that
domestic rule of law, in the long term, no ad emphasis on the establishment of the rule of
hoc, temporary or external measures can ever law is irrelevant, or at best tangential, to the
replace a functioning national justice system.”31 real work of conflict resolution and postcon-
As noted earlier, meaningful reforms related flict peacebuilding—an exercise naively en-
to the rule of law will require the development gaged in by those who believe that the simple
of significant local capacity and political will. imposition of legal regulations and institutions
This is often a painstaking and drawn-out will promptly erase deep-seated resentments,
process that does not jibe with the funding hatreds, and power struggles. Nothing could
and program cycles and political attention span be less accurate. The rule of law has at its core
of international donors. As a consequence, a hard-nosed and not particularly optimistic
while the rhetoric of “the importance of local assessment of human nature and the prospects
ownership” is on the rise, these other factors for conflict. It assumes that pacific pledges
often still result in the imposition of foreign- and conciliatory rhetoric are obviously impor-
driven priorities and timetables for rule-of- tant to peacebuilding but can be too tenuous.
law reform efforts. In various countries, after In the worst case, the rule of law imposes a
an international postconflict mission spends a network of institutions, mechanisms, and pro-
few years directing affairs or deciding priori- cedures that check sources of tension at an early
ties, well-meaning international staff depart phase, constrain the ability of any party to en-
the country, leaving little in place in the way gage in violent or abusive action, and force
of changed capacity or attitudes and wonder- an open process and a relatively level playing
ing why their efforts have not produced more field. In the best case, when diligently nurtured,
significant results. Part of the answer lies in this system of accountability, conflict reso-
the degree of real local dissemination and lution, limits on power, and the airing and
local ownership of rule-of-law reform. processing of opposing views—all undertaken
Practice, however, seems to be moving in through nonviolent channels—becomes habit
the direction of rhetoric. The role of the inter- forming, reducing the likelihood of another
national community in building the rule of civil war.
law in postconflict societies is expanding, as
noted earlier. As our collective understanding
grows, however, of the relationship between
the rule of law and postconflict stabilization
and of how to facilitate the sustainable en- 1. Lotta Harbom and Peter Wallensteen, “Pat-
trenchment of the rule of law, the place of local terns of Major Armed Conflicts, 1990—2004” in
ownership is becoming more central, meaning SIPRI Yearbook 2005: Armaments, Disarmament and
International Security (Oxford: Oxford University
that different approaches will be adopted based
Press, 2005), 121. The SIPRI study defines a major
on local decisions informed by outside advice.
armed conflict as “the use of armed force between the
military forces of two or more governments, or of one
CONCLUSION government and at least one organized armed group,
resulting in the battle-related deaths of at least 1,000
New challenges to peace require new tools. people in any single year and in which the incompat-
As war in all parts of the globe changes its ibility concerns control of government and/or terri-
complexion, becoming preponderantly intra- tory.” The study found that during the period

1990–2004, only four of fifty-seven conflicts (7 per- (Newbury Park, Calif.: Sage Publications, 1979); Ru-
cent) were wars of the classical interstate variety. dolph J. Rummel, “Libertarianism and International
2. “The proclamation of this constitution . . . not Violence,” Journal of Conflict Resolution 27, no. 1
only did not stop lawless and arbitrary rule, but also (March 1983): 27–71; Bruce Russett, Grasping the
served to camouflage it, allowing the torture and kill- Democratic Peace: Principles for a Post–Cold War World
ing of innocent people while praising Stalin’s law for (Princeton, N.J.: Princeton University Press, 1993);
all the people.” Aleksandr Iakovlev, “Constitutional Zeev Maoz and Nasrin Abdolali, “Regime Types and
Socialist Democracy: Dream or Reality,” Columbia International Conflict, 1815–1976,” Journal of Con-
Journal of Transnational Law 28 (1990): 117. flict Resolution 3 (1989): 3–35; and William J. Dixon,
3. “Concluding Document of the CSCE “Democracy and the Peaceful Settlement of Interna-
Copenhagen Conference on the Human Dimension, tional Conflict,” American Political Science Review 88,
June 29, 1990,” International Legal Materials 29 no. 1 (March 1994): 14–32. Much of the research on
(1990): 1305, 1306. The CSCE member states ex- the “democratic peace” finds its roots in the theory
plained that “the rule of law does not mean merely a propounded nearly two hundred years ago by Imman-
formal legality which assumes regularity and consis- uel Kant. But see, for example, Edward D. Mansfield
tency in the achievement and enforcement of demo- and Jack Snyder, “Democratization and War,” Foreign
cratic order, but justice based on the recognition and Affairs 74, no. 3 (May–June 1995): 79–97. They sug-
full acceptance of the supreme value of the human gest that although fully democratized nations are less
personality and guaranteed by institutions providing a likely to go to war with one another, the process of
framework for its fullest expression.” transition to democracy exacerbates instability and
4. See, for example, Theodor Meron, “Interna- thereby enhances the possibility of entry into conflict
tional Criminalization of Internal Atrocities,” Amer- in the short term.
ican Journal of International Law 89 (1995): 554. 9. “Concluding Document of the CSCE
5. United Nations, “Statute of the International Copenhagen Conference on the Human Dimen-
Tribunal for the Prosecution of Persons Responsible sion.” In 1994, to reflect a series of structural changes
for Genocide and Other Serious Violations of Inter- as the Helsinki process moved from a series of peri-
national Humanitarian Law Committed in the Terri- odic meetings to a permanent organization with sev-
tory of Rwanda and Rwandan Citizens Responsible eral institutional components and full-time staff, the
for Genocide and Other Such Violations Committed name of the Conference on Security and Coopera-
in the Territory of Neighboring States, between 1 tion in Europe was formally changed to the Organi-
January 1994 and 31 December 1994,” UN Doc. zation for Security and Cooperation in Europe.
S/RES/955, annex (New York: United Nations, 1994). 10. See, for example, Rachel Kleinfeld, “Compet-
Even though the war in the former Yugoslavia was ing Definitions of the Rule of Law,” in Promoting the
treated as international in nature, the international Rule of Law Abroad, ed. Thomas Carothers (Wash-
criminal tribunal created to address the abuses of that ington, D.C.: Carnegie Endowment for International
conflict stated its conviction that its jurisdiction also Peace, 2006).
extends to crimes perpetrated in both internal and in-
11. As one observer of rule-of law-assistance has
ternational conflicts. United Nations, Annual Report,
UN Doc. A/49/342-S/1994/ 1007, par. 19 (New
York: United Nations, 1994). Assistance in this field has mushroomed in recent
years, becoming a major category of international
6. Rome Statute of the International Criminal aid. . . . Russia’s legal and judicial reforms, for ex-
Court, UN Doc. A/CONF.183/9, Articles 6–8. ample, have been supported by a variety of U.S.
7. Boutros Boutros-Ghali, An Agenda for Peace assistance projects, extensive German aid, a $58
(New York: United Nations, 1992), 32–34. million World Bank loan, and numerous smaller
World Bank and European Bank for Reconstruc-
8. See, for example, Melvin Small and J. David
tion and Development initiatives, as well as many
Singer, “The War-proneness of Democratic Regimes,” efforts sponsored by Great Britain, the Nether-
Jerusalem Journal of International Relations 1, no. 4 lands, Denmark, and the European Union. . . .
(Summer 1976): 50–69; Rudolph J. Rummel, War, Almost every major bilateral donor, a wide
Power, Peace, vol. 4 of Understanding Conflict and War range of multilateral organizations—especially

development banks—and countless foundations, 17. Friedrich A. von Hayek, The Road to Serfdom
universities, and human rights groups are getting (Chicago: University of Chicago Press, 1944), 72.
into the act. In most countries, U.S. rule-of-law
assistance is a small part of the aid pool, although 18. Hernando de Soto, The Other Path:The Invis-
Americans frequently assume it is of paramount ible Revolution in the Third World (New York: Harper
importance. They mistakenly believe that rule- and Row, 1989), 253.
of-law promotion is their special province, al-
19. See, for example, Diane F. Orentlicher, “Set-
though they are not alone in that. German and
French jurists also tend to view their country as tling Accounts: The Duty to Prosecute Human
the keeper of the flame of civil code reform. Rights Violations of a Prior Regime,” Yale Law Jour-
British lawyers and judges point to the distin- nal 100 ( June 1991): 2537–2615.
guished history of the British approach. Transi- 20. Adding to the concern that the gacaca ap-
tional countries are bombarded with fervent but
proach will not quickly calm the situation, between
contradictory advice on judicial and legal reform.
April 2005 and March 2006, some 19,000 Rwandans
Thomas Carothers, “The Rule of Law Revival,” For- sought asylum in neighboring Burundi, reportedly flee-
eign Affairs 77, no. 2 (March–April 1998): 95, ing persecution under the gacaca system. “Burundi-
103–104. Rwanda: Thousands More Asylum Seekers Repatri-
12. Organization for Security and Cooperation ated,”, June 13, 2006; and UN Office
in Europe, Kosovo: A Review of the Criminal Justice for the Coordination of Humanitarian Affairs,
System (Vienna: Organization for Security and Co-,
operation in Europe, October 18, 2000). June 23, 2006.
13. As UN secretary-general Kofi Annan has 21. Thomas Buergenthal, “The United Nations
noted, “experience in the past decade has demon- Truth Commission for El Salvador,” Vanderbilt
strated clearly that the consolidation of peace in the Journal of Transnational Law 27, no. 3 (October
immediate post-conflict period, as well as the main- 1994): 503.
tenance of peace in the long term, cannot be achieved 22. As Thomas Buergenthal, one of the three
unless the population is confident that redress for members of the commission, has noted, the “estab-
grievances can be obtained through legitimate struc- lishment of the Truth Commission marks the first
tures for peaceful settlement of disputes and the fair time that the parties to an internal armed conflict, in
administration of justice.” Kofi Annan, The Rule of negotiating a peace agreement, conferred on a com-
Law and Transitional Justice in Conflict and Post- mission composed of foreign nationals designated by
Conflict Societies, UN Doc. No. S/2004/616 (New the United Nations the power to investigate human
York: United Nations, August 23, 2004), 3, par. 2. rights violations committed during the conflict and to
14. For a comprehensive review of this category make binding recommendations. . . . National recon-
of rights, see Stanislav Chernichenko and William ciliation is often difficult to achieve in countries try-
Treat, The Administration of Justice and the Human ing to overcome the consequences of a bloody, inter-
Rights of Detainees:The Right to a Fair Trial—Current nal armed conflict or an especially repressive regime
Recognition and Measures Necessary for Its Strengthen- without an appropriate accounting for or acknowl-
ing, UN Doc. No. E/CN.4/Sub.2/1994/24 (New edgment of past human rights violations. To the ex-
York: United Nations, June 3, 1994); and William M. tent that the Truth Commission as an institution met
Cohen, “Principles for Establishment of a Rule of the demands of the Salvadoran peace process, it has
Law Criminal Justice System,” Georgia Journal of become a model the international community is likely
International and Comparative Law 23 (Summer to draw upon in the years to come.” Ibid., 501–502.
1993): 269–287. In his article, Professor Buergenthal provides an in-
15. Radio Free Europe/Radio Liberty, “Britain sightful firsthand description and analysis of the
Sends Special Crime Squad to Kosovo,” Balkan Re- Truth Commission and its relationship to the peace
port 5, no. 3 ( January 12, 2001). process.
16. “General Framework Agreement for Peace in 23. United Nations, Report of the Commission on
Bosnia and Herzegovina,” annex 7, article I, par. 3, the Truth for El Salvador: From Madness to Hope, UN
and annex 11, November 21, 1995. Doc. S/25500, annex (New York: United Nations,

1993), 25; and Buergenthal, “The United Nations 31. Annan, The Rule of Law and Transitional Jus-
Truth Commission for El Salvador,” 522. tice in Conflict and Post-Conflict Societies, 12, par. 34
24. “Agreement between the Government of (emphasis added). A UN-sponsored study on post-
Guatemala and the Guatemalan National Revolu- conflict reconstruction proceeds from the same prem-
tionary Unity on the Establishment of the Commis- ise: “Wartorn societies inevitably depend to a large
sion for Historical Clarification,” June 23, 1994. degree on external assistance for reconstruction. . . .
25. A multiyear interdisciplinary project on con- The question of the relative role, responsibility and
stitution making, peacebuilding, and national recon- authority of external donors and actors, as opposed to
ciliation, organized by the United States Institute of local ones, in bringing about and maintaining peace
Peace in cooperation with the United Nations Devel- and in rebuilding the country is one of the most im-
opment Programme, conducted case studies of the portant and most delicate questions. . . . External as-
constitution-making processes of eighteen countries sistance, rather than being subsidiary to local efforts,
in transition to derive a series of lessons for applica- tends to become a substitute, and worse, destroys
tion in postconflict environments. The analyses de- local coping and resistance mechanisms and controls
veloped through the project inform this section of the emerging local institutions and solutions. A large-
present essay. scale foreign presence . . . is obviously not sustainable
in the long term, neither politically for the local actors
26. Interviews by the author.
nor financially for the external ones. A policy of ‘bet-
27. Government of Eritrea, Proclamation No.
ting on the local’ may in the short term be more labo-
55/1994, March 15, 1994.
rious, less spectacular, and take more time, but in the
28. Bereket Habte Selassie, “Constitution Mak- long term may be the only realistic option.” Rebuild-
ing as a Historic Moment” (keynote speech to the In- ing Wartorn Societies: Problems of International Assis-
ternational Symposium on the Making of the Eri- tance in Conflict and Postconflict Situations (Geneva:
trean Constitution, Asmara, Eritrea, January 7, 1995). United Nations Research Institute for Social Devel-
29. “Preliminary Report of the Independent Com- opment and the Programme for Strategic and Inter-
mission of Experts Established in Accordance with national Security Studies of the Geneva Graduate
Security Council Resolution 935,” 1994, 31. Institute of International Studies, August 1994), 17.
30. Rome Statute of the International Criminal
Court, UN Doc. A/CONF.183/9, Preamble and Ar-
ticle 17.