Rebuilding Judicial Capacity with Enchanted Tools
| Autor | Pádraig McAuliffe |
| Cargo | Government of Ireland Scholar and PhD Finalist at the Centre for Criminal Justice and Human Rights, University College Cork., Republic of Ireland |
| Páginas | 1-32 |
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“The antiseptic strictures and internal finality of the legal process make it a particularly tempting instrument for creating a false sense of closure within a self-absorbed utopia”
Payam Akhavan
In the East Timorese Serious Crimes Process, a mission to reconstruct the judiciary through hybrid tribunal trials failed almost completely. One of the primary reasons for this was an approach by the UN Transitional Administration in East Timor which emphasized a mechanical process of accountability for as many suspects as possible over the type of exemplary and scrupulously fair trials that can ground a new criminal justice system in a country which had never enjoyed de-politicized, uncorrupted justice1.
In Sierra Leone, another hybrid tribunal was established with a similar ambition to found a new commitment to the rule of law through the trials of those most accountable for crimes of the recent decade-long civil war. However, in so doing, the Special Court for Sierra Leone engaged in only four trials with minimal capacity-building success. Here the potential existed for a larger number of cases which would not only have done justice on a larger scale, but which would have trained judges, lawyers, administrators in a wider range of skills that arePage 2 essential in judicial reconstruction2. Instead, liberalizing change was presumed to flow from a handful of trials. In Cambodia3 and Lebanon4, two countries with failing judicial systems, the opportunity for capacity-building in the hybrid courts established there has been eschewed in favour of politicized trials of octogenarian Khmer Rouge members and a once-off trial for the highly significant Hariri assassination.
In Cambodia, it is assumed the convictions of Khmer Rouge leaders can help ground a legal system committed to the rule of law, despite the ever-present risk of political manipulation which challenges rule of law values5. Though all of these trials have benefited or will benefit their societies by sending a normative message about the propriety of political violence, hybrid courts were designed to do more - to build the diminished or non-existent capacity of the domestic courts to try criminals, to inculcate a cultural commitment to the rule of law and human rights, in addition to aiding the transition to a more liberal order through trials of prior political wrongdoers.
However, the experience of hybrid tribunals has seen two trends which have restricted their potential to ground judicial reconstruction. Firstly, the objective of political transformation through trials has always been advanced at the expense of building the capacity of local justice systems, even where the post-conflict environment is such that absence of functioning justice institutions is a bigger threat to sustainable peace than residual post-conflict hostilities. Secondly, it has been presumed that capacity-building and cultural commitment follow naturally from the liberalizing change transitional justice ushers in, and that there is no need to take additional measures in the trials to build capacity.
There is an assumption that convicting serious criminals alone will suffice to usher in the rule of law, and it is this assumption that is challenged herein. This article outlines one particularly important reason why capacity-building has consistently been sidelined – the preconceptions of policy-makers. This piece takes seriously the contention that “building the rule of law is aPage 3 profoundly human endeavour”6. It identifies a bias among humanitarian policy-makers and lawyers for advancing political transformation through the tool of transitional justice and an over-estimation of the potential of transitional justice to ground a legal order in severely underdeveloped post-conflict states.
The capacity-building potential of hybrid courts occurs at the intersection of the fields of rule of law reform and transitional justice. As Stromseth, Wippman and Brooks suggest, the question of whether and how accountability processes can contribute to the development of domestic justice systems and the construction of the rule of law is “surprisingly underanalyzed” academically7. To date, the two fields have been treated mostly as two separate areas of interest in both academic coverage and under UN transitional administration. As a result, the full potential of accountability proceedings to ground rule of law and institutional reform has not been met.
To a certain extent, “we are relatively early in the process of understanding the longer-term impacts of accountability processes – such as criminal prosecutions, truth commissions, reconciliation proceedings, vetting – in different post-conflict societies …… more systematic thinking and empirical research on the impact of accountability proceedings in specific post-conflict societies is a critical need”8. The long-term effects of transitional justice on the domestic justice sector, especially capacity-building remains unclear and cannot be presumed to be an unequivocal good.
More research is needed before accountability mechanisms can be designed to fully realise their potential in judicial reconstruction. This article does attempt to expound any grand theory of judicial reconstruction, but instead points out the reification of transitional justice as one of the reasons why potential for judicial system reconstruction has not been met despite the considerable resources, organization and transitional justice experience of the UN.
Part I describes the differences between a foundational approach to transitional justice which emphasizes capacity-building over a transformational approach which focuses on accountability proceedings as a means of drawing the lines between past and present conceptions of acceptable political behaviour. Part II examines the role of hybrid courts in building judicial institutions and a rule of law culture. Part III examines the role of transitional justice in political transformation. It suggests how the fair trials which serve as an example in judicial reconstruction can harm transformational goals, thereby contributing to a diminished status in transitional for foundational trials. Part IV examines David Kennedy’s theory of “tool enchantment” as an explanation for the perpetuation of this transformational bias. It cites historical precedent and the reduction of transitional justice to a ritual process as contributing factors.
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There are a number of essential aspects in establishing the rule of law in transition such as policing, anti-corruption programs, law enforcement and the court system, but it is on the latter that this article focuses on.
A functioning court system of independent and qualified judges, prosecutors and defenders is the paramount requirement for establishing the rule of law and vindicating the fundamental rights of the people. Without such a system, democracy itself is jeopardized, as are related goals such as stability, equality before the law and economic development9. As Tolbert and Solomon put it, “it is axiomatic that without functioning courts and a judiciary system, there can be no rule of law”10. Indeed, in a time of social, political and economic flux, the need for a functioning court system is at its greatest. Unfortunately, it is also at these times of paradigmatic change from oppression that the courts are at their weakest and most in need of repair.
Recent reform of UN peace operations paved the way for the emergence of the hybrid court as a means of furthering rule of law reform. It had become apparent from the Cambodia and Somalia missions that temporary, ad hoc measures were not enough to restore the rule of law and that “restoring the capacity and legitimacy of national institutions is a long-term undertaking”11. The UN realised it needed to exercise as many of the standard powers of state as were necessary for as long as was necessary to restore the rule of law. The Security Council began to give UN missions wide legislative, executive and judicial mandates to carry out their functions12, while the aforementioned Brahimi Report13 and Rule of Law Report14 placed a hitherto unseen emphasis on strengthening the rule of law in transitional societies.
So what is meant by the rule of law and how can the hybrid court advance its construction? Craig has identified two main ways of conceptualizing it15. The first is a “formal” or “minimalist” conceptualization which emphasizes the rule of law’s formal and institutional content. The rule of law is satisfied where no-one can be punished except in accordance with democratically created laws adjudicated by courts observing due process and guaranteeing equality before the law and a protection of a minimum of human rights. The second is aPage 5 “substantial” or “maximalist” conceptualization of the rule of law which incorporates the elements of the formal account but combines substantive commitments to public legitimacy, fundamental rights, socio-economic rights and democratic freedoms that the formal concept does not guarantee16. As Simmons describes:
“A substantive theory is characterized by the greater substantive content it incorporates. Thus it incorporates to some degree one or more of the following: rules securing minimal welfare……., rules securing some variety of the market economy, rules protecting at least some basic rights...
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