Strengthening the Rule of Law

Human rights are at the centre of the work of the United Nations. The mission must maintain a strong partnership on human rights issues with UN bodies. But an MLT may also need to make hard choices between peace and justice when promoting human rights. This illustrates a core leadership consideration on polarities. A mission must promote both peace and justice at the same time.

What are human rights principles?

Human rights are one of the three reinforcing pillars of the UN system. The other two pillars are development, and peace and security.

Human rights principles should inform a UN peace operation’s strategic planning. All personnel should ensure that they promote, respect and protect human rights. The HoM and the MLT must ensure that all staff are aware of their human rights responsibilities.

UN personnel who commit human rights abuses must face investigation. Such investigations are the responsibility of the HoM and/or the MLT. They should share any allegations of abuse with the Conduct and Discipline section.

Before supporting a non-UN security force, the mission must assess risks and benefits. This is set out in the UN’s HRDDP. The assessment must examine the human rights record of the recipient of support. It should also address the adequacy of measures to prevent human rights violations.

Human Rights sections in missions

The Human Rights section helps mainstream human rights across all mission activities. It conducts monitoring, investigations, assessments, reporting, advocacy and interventions; gives human rights advice; and provides support for institutional reform and capacity building to host governments.

The Head of the Human Rights section acts as the human rights adviser to the HoM. They are also the UNHCHR’s representative in the area of operation.

The MLT should engage with relevant actors in dialogue on the human rights situation. This should include human rights organizations, civil society and host-state authorities. It is now standard operating practice to issue joint reports on issues of concern.

Several other sections play a significant role in promoting and protecting human rights. One example is the Child Protection section. It usually coordinates with the SRSG for Children and Armed Conflict and UNICEF.

Other relevant sections include Gender, and Rule of Law. Some operations also include dedicated components that address specific aspects of transitional justice.

The mission must maintain a strong partnership on human rights issues with the UN. The same is true for other humanitarian, development, political and related actors. But promoting human rights may lead to difficult choices. A mission must support peace and justice at the same time, and neglect neither.

Conflict and post-conflict situations often increase women’s exposure to risks. But women also play a role in promoting human rights and achieving sustainable peace. Although understood and accepted, these issues are not always acted on. A mission may even overlook them based on faulty “gender-blind” human rights approaches.

Conflict-related sexual violence

Ill-disciplined security forces and other groups often believe they can act with impunity. Sexual violence is common in armed conflict and in fragile states. CRSV consists of violent acts of a sexual nature. This includes rape, sexual slavery, enforced prostitution and forced pregnancy. It also includes any other form of sexual violence against women, men, girls or boys.

CRSV is a crime against international human rights law, criminal law and refugee law. Perpetrators can orchestrate CRSV in deliberate campaigns of terror against specific groups. As such, it can be part of a genocidal effort or mass atrocity. It may also occur in a more decentralized manner. This may be due to a general lack of discipline within units, or to a general lack of security and stability.

The mission should always ask for women’s views about CRSV. Women’s groups, NGOs, the media and CSOs can provide insights on CRSV and other issues. If women’s groups do not already exist, it may be possible assist in their creation.

It is important to remember that even discussing CRSV and SBGV is a cultural taboo in many cultures. Working in such cultures can be particularly challenging. The mission should practice context awareness and adopted local approaches to prevention methods.

Preventing and combating CRSV and SGBV are multi-dimensional activities. As such, they depend on the integrated capacity of the mission and the UN system.

The UN system usually sets up a sub-cluster or working group to address SGBV and CRSV in a specific response. Deploying enough uniformed women in the Military and Police components is a prerequisite. UNPOL may also deploy specialized teams with skills in investigations and SGBV.

The UN itself must never compound the situation through ill-discipline or predatory behaviour. On this issue, the MLT and the mission’s Conduct and Discipline section must remain vigilant.

Child protection

Children have particular needs as a consequence of conflict. Several peace operations mandates include provisions for the protection of children.

Armed forces may have recruited children at a young age. They may be victims of sexual violence, or parties to or victims of killings, maiming or abduction. They may also lack access to humanitarian relief or child-sensitive DDR programmes.

The mission may need to address abuses committed against children by armed groups. This might involve humanitarian support, relocation or reunion with family members. It could also include reintegration programmes, education and other forms of support.

Child-protection advisers will help the MLT identify child-protection priorities in a mission area. UNICEF, the UNCT and national actors may also play a role as appropriate.

Conflict tends to weaken legal frameworks over time. It usurps and destroys institutional infrastructures, and undermines their effectiveness through authoritarian control. Strong legal frameworks adhere to the rule of law and principles of human rights. They allow a state to frame its laws in response to the will of the people. This forms the foundation for an effective rule of law environment.

What are strong legal frameworks?

Discriminatory laws that fail to protect citizens’ rights can contribute to conflict. Strong legal frameworks do not discriminate against certain segments of a population. Laws passed under such frameworks promote the rights of all citizens.

Legal frameworks should be internally consistent and reflect cultural norms. They should also ensure the fair participation of women and minorities.

Within the mission, the MLT should promote the rule of law with national counterparts. But it needs to do so while balancing local ownership against the goals of the mission. The host government must create rule-of-law frameworks that respond to its national environment. In this context, coordinating efforts will be difficult. The MLT will need to manage tensions. Its continued political engagement will be crucial to legislative reform.

A strong judicial sector supports the transition to sustainable peace. It also plays a key role in reform of the police and corrections services. Strengthening the judicial sector requires a national security strategy. Such a strategy must recognise the links between justice and security. But capacity building in the justice sector takes time. There may be pressure for rapid justice to meet public expectations of reform. This calls for a balance between the reform process itself and local capabilities.

What is a strengthened judicial sector?

A well-respected judicial sector is vital to any peaceful transition. Its predictability and integrity attract foreign direct investment for development and commercial growth.

The focus of justice sector reform may be on criminal justice. But civil justice reform can also help reduce the incidence of crime and disorder. Such reform may include changes to inheritance and commercial law, and land reforms.

Unaddressed civil disputes can escalate into unrest or even violent conflict. But if citizens trust that the judicial process is fair, this creates trust in the host government. The reputation of the entire justice system also benefits.

The international community can provide comprehensive support to a judicial reform process. At the same time, it must assess whether its local counterparts are able to confront threats to the rule of law.

A mismatch between these threats and the authority of the mission is a recipe for failure. For example, it is not unusual for police reform to outpace judicial reform. This is unwise and can have a negative impact on all reforms.

The MLT is only one actor among those supporting judicial reform. The mission’s role is to champion national coordination of the reform process. This adds legitimacy and credibility to both the mission and the host government.

The host government’s role is to ensure that a strong judicial sector enforces the law. The MLT must balance local ownership of the sector against the mission’s own goals. It can also provide political leadership and help coordinate long-term donor support. By doing so, the MLT can help create an environment in which judicial reform can prevail over time.

Key national experts will be important for mentoring and supporting judicial reform. They will need to have expertise in the relationship between culture, context and law. Finally, the long-term nature of judicial reform requires sustained donor support.

Strong security services exist in a rule-of-law framework with respect for human rights. They must be effective, accountable and sustainable. The security sector includes police, corrections, defence and the governance of these institutions. Creating, maintaining and reforming the security sector is a complex and political process. It can lead to tensions between the mission, the host country and donors. The mission should define early on how it will support SSR efforts. This depends on discussions with national, regional and international actors.

What is security sector reform?

SSR helps define norms and standards for the security and justice sectors. It identifies the needs and gaps that exist, and the means by which these gaps will be overcome. SSR is a critical activity for ensuring long-term security and rule of law in any country.

The mission’s primary role is to assist the national authorities in SSR. This is a long-term process that does not have a fixed end date. It is unlikely to conclude within the timeframe of the peace operation. The MLT should keep track of its support to SSR needs. This will involve several mission components, the UNCT and a host of external actors.

National ownership and leadership are key elements of a successful SSR process. Weak national capacity or weak political will from national actors may undermine it.

Many internal conflicts have political roots that continue into the post-conflict phase. Tensions are often played out in competition within and between security institutions. The mission should blend its external support with political engagement to resolve issues.

National SSR strategies reflect local cultures, sensitivities and historical conceptions of security. SSR does not seek to put in place a Western paradigm of the security sector. It understands that a Western model may not be appropriate.

But SSR planners should avoid accepting security practices that contribute to instability. The SSR strategy must resolve underlying conflict sources while preventing new crises.

SSR is a far-reaching systemic endeavour. It requires careful coordination on the part of the MLT. The SSR and DDR divisions or sections of the mission (which are often combined) are in the lead. Justice and corrections, and the police and military components, will provide support.

Many other actors may also play a role, concurrent with the UN’s activities. It will be essential to coordinate and achieve rationalization among these efforts. Above all, national institutions, laws, and processes should play a central role. There should also be coordination between SSR and DDR processes.

The peacekeeping assessed budget may fund SSR-related programmatic activities. This requires mission budget approval. But a fully-fledged SSR process may need donor support beyond the lifespan of the mission. Coordination with the UNCT, the World Bank and bilateral donors is essential.

Supporting SSR may involve reform of several sectors and actors. These include law-enforcement agencies, corrections, defence and intelligence services. SSR should also promote good governance and civilian oversight of these services. Initial investments will pay dividends in the medium to long term. An integrated approach will deepen the relationship between SSR and rule of law. It should include all relevant mission components and sections. Hiring and retaining high-quality personnel in these areas will be essential.

The mission should take four principles into account when designing and supporting SSR:

1. Support national ownership while incorporating good governance and respect for human rights.
2. Balance efforts to enhance operational capacity against support to ensure effective governance.
3. Foster transparency, accountability, dialogue and trust.
4. Balance “do no harm” against “do what works” and “what is right”.

Reinforcing the rule of law and sustainable peace are impossible without law enforcement. Police and other law-enforcement agencies are the most visible expression of governmental authority. Transitioning law enforcement from the military to the police is an important step. It signals the re-establishment of the rule of law within a human rights framework.

What is a strong police and law-enforcement sector?

The terms “policing” or “police” as used in this Handbook follow UN terminology. They refer to security agencies that exercise police powers (e.g. arrest or detention).

At the same time, the law-enforcement sector is a broad system. It includes judges, prosecutors, courts, corrections, customs and border services. It also covers court management and administration.

In many post-conflict societies, law-enforcement agencies lack legitimacy. This may be due to their involvement in the conflict, as well as corruption and human rights abuses.

The MLT’s support for law-enforcement agencies is thus critical to a stronger rule of law. This includes support for police, customs and border services.

But there are limits to what a mission can do. Under UNSC resolutions 2185 and 2382, any police-related activity must conform with the SGF. This includes its Guidelines on Police Command. In fact, the SGF should be front and centre in all operational considerations.

The SGF defines the “what” of UN police peacekeeping (policy). It also sets out the four core pillars of a UN Police Peacekeeping component outlined in the Policy:

When supporting law-enforcement agencies, the MLT may wish to consider the following:

• Is the proper infrastructure in place for local actors to be responsive to reform?
• Will the reform be sustainable?
• Might comprehensive reform be premature?
• Does the state of security allow the implementation of police reform?
• Are there enough resources to support the reform with the right skills?
• Is there enough political will exists in the host government for reforms?

The leadership role within the mission rests with the Police Commissioner. They are responsible for the mission’s support to the law-enforcement sector.

The MLT may need to coordinate mission activities. Many actors engage in strengthening the law-enforcement sector. The MLT should avoid overlap, duplication and gaps.

The legitimacy of the sector depends on the political management of law-enforcement agencies. Thus, the MLT should foster support for reforms at these political levels.

Continued human and capital resources to support long-term reform processes are crucial. Police and other law-enforcement mentors and advisers increase the legitimacy of reform.

Law-enforcement reform processes are long-term in nature. They depend on capability and capacity, as well as local perceptions of legitimacy. Reforming and rebuilding the police and other law-enforcement agencies requires long-term donor commitments.

Post-conflict corrections systems, when they exist, are weak. This leads to violations of prisoners’ basic human rights. It also creates a lack of coherence between the elements of the criminal justice system. A corrections system that is humane, fair and coherent gains legitimacy and respect. It must partner with strong legislative, judicial, police and other law-enforcement agencies. Together, they create a legitimate and credible rule of law.

What is a strong corrections system?

A functioning criminal justice sector combats impunity. It extends state authority, protects civilians and ensures law and order.

The corrections system is an often overlooked element of the judicial system. It sits at the end of the criminal justice chain. It is also the most difficult sub-sector for which to attract donor support.

In post-conflict contexts, rule-of-law institutions are often undermined. Prisons are no exception. A weak corrections system can jeopardize other rule of law efforts. This can have a detrimental effect on security and stability.

The MLT should include corrections in its efforts to strengthen rule of law and human rights. It should make sure that it receives attention from the host government and donors.

The mission can provide mentoring for corrections personnel in the host country. The MLT can also help gain donor support for this sector, which is generally overlooked. Engaging actors that support long-term development of the corrections system will be important.

Technical advisers are critical to successful reform of the corrections system. Specific language on corrections in the mission mandate and budget will be vital.

The goal of professionalizing the defence sector is civilian control of the military. The military may need to regain the trust of the public and the international community. This is especially true following military involvement in conflict. Professionalizing the defence setctor is not only about rebuilding troop levels and training. It involves reconstructing both armed and non-armed elements of the defence sector. It must also civilianize its governance structures and normative values.

What is a professional defence sector?

Poor military discipline and standards or strained resources may catalyse a conflict. A peacekeeping mission can thus help improve the defence sector as part of an SSR process.

Training is a critical part of the process. It should include decision makers from across the sector. Typical activities include training in human rights, IHL, child protection and preventing SGBV.

Support to the defence sector may include many actors. This is because bilateral and multilateral agreements run alongside UN activities. Coordination and rationalization among all these efforts is thus essential.

External assistance should not undermine the legitimacy of the host government. National institutions, laws, and processes may be weak. But they must also play a central role in programmes and processes.

Defence sector support should form part of a national SSR process. It will also be important to coordinate with DDR programmes.

The mission should create an integrated and synchronized plan with the host government. This plan should detail the resources needed to professionalize the defence sector.

A long-term programme should take account of the life-cycle management of materiel systems.