Rule of Law Roundtable: Towards Best Practice in Post-Conflict Situations

RULE OF LAW ROUNDTABLE:
TOWARDS BEST PRACTICE IN POST-
CONFLICT SITUATIONS

25 28 October 2010
Queanbeyan, NSW

Roundtable Report

ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT

It is by reintroducing the rule of law, and confidence in its impartial application, that we can
hope to resuscitate societies shattered by conflict 1

1
Former United Nations Secretary General Kofi Annan at the opening of the fifty-ninth session of the United
Nations General Assembly, 2004.

2


CONTENTS

Foreword

Context

1. Introduction

2. Criminal Justice Sector

2.1 Police

2.2 Courts and Prosecutions

2.3 Correctional Institutions

2.4 Customary Justice Systems

3. Security Sector Reform

4. Transitional Justice

5. Whole-of-Government Approaches

5.1 The Australian Approach

5.2 Whole-of-Government in Practice

6. Conclusions

6.1 Government-only Roundtable

3


FOREWORD

The Asia Pacific Civil-Military Centre of Excellence convened the Rule of Law Roundtable:
Towards Best Practice in Post-Conflict Situations from 25-28 October 2011. The Roundtable was
convened with the aim of strengthening Australia s multiagency approach and capabilities for
conflict management offshore in this field. The central theme of the Roundtable was civil-
military-police cooperation and coordination on rule of law issues during the early stages of the
post-conflict period. The proposal for the Roundtable was developed in consultation with
relevant whole-of-government officials with responsibilities for Australian responses in post-
conflict situations. The Roundtable was considered particularly timely due to the establishment
of new Australian Government capacity in this area including the Australian Civilian Corps, the
National Security College and the Centre itself.

The Roundtable had five sessions: best practice in post-conflict situations; criminal justice
sector; security sector reform; transitional justice and whole-of-government approaches. In
each session a number of presentations were made by subject-matter experts, which then
informed and prompted discussion. The Roundtable then concluded with a Government
officials-only session to discuss the implications of the Roundtable for the Government.

The Roundtable created a space for international rule of law experts and practitioners with a
select group of Australian Government officials to discuss best (or better) practice in re-
establishing the Rule of Law in post-conflict environments. What emerged was greater clarity
concerning the various responsibilities of different agencies and actors in the field together with
a greater appreciation of the interconnectedness of the issues and the need to continue to work
to develop our expertise in this area.

This Report provides a summary of key issues discussed at the Roundtable and includes research
material to give a holistic report on the state of the art for rule of law It is a blend of research
material, content from Roundtable presentations and comments made by participants during
discussion time under. The Roundtable was conduicted under the Chatham House Rule.

The Centre was delighted by the high level and active participation at the Roundtable. I would
like to acknowledge the outstanding contribution made by Dr Vivienne O Connor, Senior Rule of
Law Adviser in the United States Institution of Peace s Rule of Law Program who agreed to co-
facilitate the Roundtable. I would like to thank all those who took part and especially the
presenters. Additionally, I would especially like to thank Ms Rachel Wallbridge for her work
behind the scenes organising the Roundtable and in preparing and researching this Report.

Peter Thomson
Governance and Rule of Law Program manager
Asia Pacific Civil-Military Centre of Excellence

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Roundtable Official Photograph: 26 October 2010

The Roundtable at work

5


SESSION ONE: GROUND SETTING

In the opening session of the Roundtable, facilitators Mr Peter Thomson and Dr Vivienne
O Connor established the scope for discussion, outlining initial issues for consideration and
canvassed recent developments in the rule of law (ROL) space. The need to share best
practice between actors involved in ROL work and the need for a coherent framework for
exercising ROL became an underlying theme of the Roundtable.

The following framework was put forward to frame the Roundtable and working groups.
During discussions, participants were encouraged to:

· identify gaps in policy and programming;

· identify future research priorities;

· identify ways to improve cross-government coordination; and

· capture best practice/lessons learned.

The importance of moving beyond identifying issues and problems towards developing
effective ROL solutions was stressed as a key condition of successful Roundtable
discussions. In addition, the need for evidence-based approaches to ROL projects (including
mapping the existing system) was highlighted, noting that it requires a multi-disciplinary
approach.

The delivery of vital services such as justice and security are crucial functions of an effective
state. Essential to this process is the ROL. While there is a diverse understanding amongst
practitioners of the definition of ROL, it can be summarised as the way in which individuals
and government obey and are regulated by domestic or international law.2

The diverse understanding of ROL was reflected in Roundtable discussions. One participant
defined ROL as security + justice = ROL. Another argued that any ROL definition can be
critiqued for being either too inclusive or if a broader definition is taken, for having a lack of
clarity. Yet another participant noted that conflict is not a linear process and when and at
what point a society moves from conflict into a post-conflict environment is often
contested. In this Report, the following definition widely used in the UN Secretariat is
adopted.

2
The UN Secretary-General defines ROL as ...a principle of governance in which all persons, institutions and
entities, public and private, including the State itself, are accountable to laws that are publically promulgated,
equally enforced and independently adjudicated, and which are consistent with international human rights
norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal
transparency. Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies, 23 August 2004 (S/2004/616).

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One participant stressed that Australia needs to be realistic and focused about what is
achievable in terms of ROL in post-conflict societies. In the short term, it will be about
restoring the coercive power of the State, balanced with constraints. Until consent is
earned from the community, ROL will always be fragile.

Building or re-establishing the ROL in a post-conflict environment is a difficult, complex and
inherently political task. Because conflict is rooted in political dynamics, understanding the
local context and finding solutions that are tailored to the local community is crucial to the
success of a ROL program. As one participant emphasised, it is important to have a strategy
for engaging with the local community and non-government sector right from the
beginning.

SESSION TWO: CRIMINAL JUSTICE SECTOR

Often the most pressing challenge facing a post-conflict justice system is the overwhelming
prevalence of criminal conduct. Attempts to build a strong criminal justice sector, while vital
to ongoing peace, is a difficult and time consuming task. The physical infrastructure of the
system may be damaged or destroyed. Criminal justice actors may have fled the country
during the conflict, leaving a dearth of personnel. If there are justice actors remaining, they
may have been complicit in human rights violations or may lack the basic capacity to carry
out their job. Another challenge is the sheer enormity of the task at hand and the length of
time it can take to see measurable, positive change in the criminal system.

In the mid-to-long-term, criminal justice reforms have focused on police services, the
judicial system, penal institutions, prosecutions and criminal defence lawyers. These
institutions are often broken and dysfunctional after years of conflict and consequently
there is a long list of general reforms necessary.

Participants emphasised that reform of the criminal justice system should be holistic and
cover all sectors. For example, international police can arrest criminals, but if there are
ineffective courts or penal institutions, this can create potential human rights issues, with
suspects languishing in custody in substandard conditions for unreasonable periods of time
awaiting trial. In addition, reform must be sustainable and supportable by the host State s
human resource capacity, as creating a criminal justice system that is not affordable in the
long term is problematic.

In the criminal justice session there were presentations and discussions about policing,
prosecutions and defence, legal criminal code reform and correctional institutions within
the Pacific context, as well as discussion about the complex challenges of non-state and
customary justice systems.

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2.1 Police

The first contact an offender or a victim has with the criminal justice system is usually with
the police. In many post-conflict countries, the local community s experience with the
police is negative and in some instances, it may have been used as a coercive instrument in
an abusive or fragile government. The concept of service-oriented policing may be far from
most people s experience.

Types of assistance measures for post-conflict police In Practice: Police Procedure
forces typically include:
One participant expressed the
· providing infrastructure and basic resources; view that in a post-conflict state
in the Pacific, several high-profile
· organising governance reform and leadership alleged criminal offenders had
development; their cases dismissed because the
police had failed to caution them
· reforming police laws, rules, regulations and
when they were arrested.
procedures;
Many matters are dismissed due
· reforming the system for appointing, disciplining
to poorly prepared briefs or
and vetting police;
failure to comply with procedural
· policing capacity building and training that rules for the gathering and
includes human rights training; admissibility of evidence.

· developing police-community partnerships/fora; and

· separating or de-associating the police from the military.

One participant suggested that finding the most appropriate policy options for the specific
intervention context was the most important step in police reform. As one Roundtable
presentation canvassed, attempts to recreate best practice policing models regardless of
context will inevitably fail, as the ROL experiences of well-performing countries cannot be
automatically transferred to those that are not performing well. In addition, the reform of
the police service should be gradual and be in line with political and social transition. This
point not only applies to policing, but is relevant to all ROL programs.

Another participant observed that the Regional Assistance Mission to the Solomon Islands,
RAMSI, illustrates the importance of planning assistance based on the local environment
and context. The geography of the Solomon Islands means that the police force is
essentially a maritime organisation and extra maritime capacity within this context is
essential. RAMSI still faces major challenges today including corruption, unfinished trials,
and most crucially limited employment opportunities, in both the formal or informal
economy and particularly for young men.

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During the Roundtable discussion a number of points in relation to policing were
emphasised, including:

· when consulting on criminal justice reform, the process should go beyond the host
government to the non-government sector and the wider community;

· within the local community there is a need to encourage a sense of what is an
appropriate use of power so that they can demand better governance;

· missions may need to be reset and strategy revised based on changes on the
ground (for example, in the Solomon Islands, the election of the new Prime Minister
was significant); and

· the need to plan for transition and to build local ownership from the beginning
phases.

2.2 Courts and Prosecutions

In the course of conflict court buildings may have In Practice: Prosecutor Training
been destroyed or damaged and basic resources may
have been looted. However, the non-existence of A participant who works in the
basic infrastructure is not the only problem or even Pacific noted that one of the biggest
the major problem in re-establishing the court challenges involves attracting,
training and retaining prosecutors
system. The pre-existing court system may have
within the formal justice system. A
been ineffective, remote, slow and costly. On
lack of experienced or trained
occasion court staff may have been implicated in prosecutors means that cases are
human rights abuses or may lack the capacity to do delayed and some prosecutions fail.
their jobs effectively. In addition, there may be high This can in turn lend to frustration
levels of corruption, courts may lack independence and further insecurity.
and the population may see the courts as illegitimate
and inaccessible.

In relation to prosecutions, Roundtable discussion focused on the following issues:

· the need for to be adequate recognition not only of the prosecutor s role, but also
the critical role that defence lawyers play in the orderly working of the legal system;

· the incidental flow-on effect of criminal justice sector reform on the civil justice
sphere (for example, in the Solomon Islands there was an unexpected increase in
women seeking maintenance orders, or those seeking payment of debts because of
new found confidence in the legal system);

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· the intervention program supporting customary
In Practice: Prosecutions in the justice initiatives need to address some of the human
Solomon Islands rights and gender inequality issues (for example, in the
Solomon Islands the customary justice system is male
One participant observed that
dominated);
after the breakdown of the legal
system in the Solomon Islands, · what, if anything, can an intervention achieve in
there was a lack of public the immediate to short-term and how to engage local
confidence in the justice system, actors to lead the development and reform process in
the longer term;
which needed to be restored.
One of the key challenges was · the urgency and availability of resources
that most of the criminal cases (including human resources) will often drive the
were being prosecuted by police composition of the international deployment team in
prosecutors who arguably lacked the first stage; and
appropriate training and
· sustainability and the need to consider whether
education. This led to mistrials structure and reform processes are sustainable in the
and the inefficient operation of country over the long term before implementing those
the legal system. changes.

2.3 Correctional Institutions

Typically the corrections system in a post-conflict state, where prisons have not been
destroyed by war, are dilapidated and run down. Post-conflict prisons are generally
overcrowded, mostly with individuals who have not yet been tried. These conditions
represent a threat to the health of detainees and to the community at large. The number of
suspects remaining in prison correlates to the judiciary s capacity to try cases expeditiously.
Often, those suspected of petty crimes may have been there for longer than the maximum
sentence for the alleged crimes. Another common problem is that prison records may not
exist and therefore it may not be clear how many people are in detention or whether they
are there legally.

Compounding these problems, prison staff may have committed human rights abuses
during the conflict or may not have the capacity to run prisons in a manner consistent with
international standards. Unfortunately correctional institution reform is often not
prioritised and is often underfunded.

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Again the Roundtable noted the sustainability of correctional reform as a key issue,
particularly if host government investment in this area is limited and/or where donor money
is expected to decrease over time.

In Practice: Prison Reform in the Solomon Islands

A Roundtable participant noted that before RAMSI, the corrections system had physically
collapsed. There were weak corporate structures, outdated legislation and ethnic
favouritism. Now, the system meets UN minimum standards and the governing prison
administration legislation is consistent with international law. Some of the key elements
that contributed to the success of the reforms included the small scale of the penal
system, advisors placed in value-add areas, rigorous planning, focus on outcomes not
processes, rapid increase in budget and funding by the Solomon Islands Government,
culturally appropriate legislation and staff discipline. In addition, there was an active
strategy to work with the community and the media, and to develop good relationships
with the relevant Ministers.

2.4 Customary Justice Systems3

Most people in post-conflict states access dispute resolution other than through the formal
justice system. For years international ROL practitioners largely ignored informal systems,
often because of a lack of understanding of them and instead focused exclusively on the
Western-style formal justice system and its reform.

More recently however, the international community has realised that these customary or
informal systems matter and that they need to be understood and worked with as part of
efforts to promote the ROL. Some justify engagement with these systems from a strategic
perspective, arguing that where formal justice mechanisms may have disappeared due to
conflict, customary justice systems may be crucial to ensuring immediate dispute resolution
and law and order. Others justify engagement on the basis that despite their flaws, they are
often the preferred and most locally trusted means of justice delivery in post-conflict states
and should be prioritized on the basis of national perspectives and preferences. For the

3
Customary justice systems can be defined as community-based social regulation and dispute resolution
practices that are distinct from, even if influenced by and intertwined with, the state sponsored western-style
justice system. The term encompasses a vast array of practices that vary from community to community and is
not meant to imply a single, uniform system. Yet what they generally have in common is their origin in
longstanding localized social structures, which greatly inform their notions of justice . Deborah H. Isser Ed.,
Customary Justice and the ROL in War-Torn Societies, United States Institute of Peace, Forthcoming.

11


local population they represent a cost-effective, accessible and reliable form of dispute
resolution.4

It was noted during the Rountable that that formal and customary justice systems often overlap
and problems around gender inequality and treatment of juveniles exist across both the
state and non-State systems within the Pacific region. Generally there needs to be focused
and appropriately balanced support to reform and development in both systems. However,
making funds available for informal justice systems does have some degree of risk, as
unintended consequences can result.

To finish up day two of the program, Roundtable
In Practice: Informal versus formal
participants broke into smaller groups for more justice systems
detailed discussions about the different aspects of
the criminal justice system. These discussions One participant shared with the
identified the importance of: Roundtable that after a two year
study in Liberia, the community made
· forward planning, benchmarking, assessing it clear that not only do locals prefer
results and understanding what is informal justice systems, but that
sustainable in the long term; even if the formal justice system was
adequately functioning; they would
· understanding local context in program still choose to not use it.
design. For example, in order to be
effective, lawyers deployed in international ROL interventions need to understand
the existing legal structure;

· achieving realistic timeframes for ROL programs in relation to different time frames
and local political conditions;

· planning of interventions before arrival is important, but may not always be feasible
to the desirable degree;

· planning must be robust yet flexible and able to be reviewed and adapted to
conditions on the ground;

· positioning the right people for the job and properly preparing advisors for work in
often difficult physical environments;

· having advisors with country expertise as well as subject matter expertise; and

· recruiting locally but realising that retention can be difficult without addressing
workplace conditions and workforce planning and management.

4
However, it should be noted that often an informal justice system may be gendered, show serious defects
towards juvenile s rights and exercise forms of punishment that are prohibited under international law. Office
of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States:
Mapping the Justice Sector, United Nations, 2006, 14.

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SESSION THREE: SECURITY SECTOR REFORM

Security Sector Reform (SSR) is a critical element of ROL reform.5 SSR provides far greater
control and accountability by civil authorities, including parliamentary oversight, of military,
police and institutions. The breadth and scope of SSR is largely undefined. Discrepancies
and different interpretations of what the term means, both in theory and in practice,
remains unresolved within the international community.

One of the ways to describe SSR is to clarify what is meant by the term security sector.
Security sector refers to the structures, institutions and personnel responsible for the
management, provision and oversight of security in a country.6 In terms of what security
means, it depends on whether a narrow or broad definition is adopted (see Diagram 1).

In the Roundtable, a presentation outlined a recent publication by the Pacific Centre of the
United Nations Development Programme and the Pacific Islands Forum Secretariat:
Enhancing Security Sector Governance in the Pacific Region A Strategic Framework. The
publication focuses on the need for a new strategic framework in the Pacific, which will
complement existing reform and capacity building efforts of police, military, and customs
and immigration agencies and will result in greater accountability and legitimacy of security
institutions. The publication is intended to support regional and national stakeholders to
develop appropriate policies and programming.

5
The 2008 Report of the Secretary General describes SSR as a process of assessment, review and
implementation as well as monitoring and evaluation led by national authorities that has as its goal the
enhancement of effective and accountable security for the State and its peoples without discrimination and
with full respect for human rights and the ROL . Report of the Secretary General, Securing Peace and
Development: Role of the Security Council in Supporting Security Sector Reform, UN Doc A/62/659 -
S/2008/392, 3 January 2008.
6
Report of the Secretary General, Securing Peace and Development: Role of the Security Council in Supporting
Security Sector Reform, UN Doc A/62/659 - S/2008/392, 3 January 2008, 5.

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Diagram 1 Narrow to Broad Approaches

The Security Sector

private security
services

ministries of defence,
internal affairs and foreign
civil emergency bodies affairs

customs

immigration
the executive, legislative bodies,
national security advisory bodies, civil society
electoral armed force, police, presidential NGO s, media,
system guards, corrections, judiciary, coast and border think tanks
financial
intelligence services, reserve or guards
management
institutions and local security units
bodies

Institutions responsible for broader
management of core sectors

human rights commissions and
ombudsmen

Source: Internally produced by the Asia Pacific Civil-Military Centre of Excellence

As SSR is politically sensitive, there was discussion at the Roundtable over the need for
demand by the host State. A key question is where demand for reform should come from,
as in most post-conflict settings there will never be whole-of-government consensus from
the host state on the need for reform. This is because some people are set to loose and
some set to gain from any changes. The Roundtable then noted after issues of demand and
consent have been considered other difficult issues arise, such as:

· deciding who to engage with and how;

· sequencing;

· identifying appropriate entry points, particularly as conditions will never be perfect
in order to create momentum for change; and

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· having donor countries be clear and honest about their own interests and objectives,
as it is difficult to have genuine consultations when donor s own strategic objectives
and interests are not transparent.

The Roundtable flagged the interaction of
In Practice: Creating the Pacific s
customary justice systems and SSR as a
SSR Strategic Framework
potential area for future research. One
In 2008, the Pacific Islands Forum participant commented that a state monopoly
Secretariat and the UN Development over the provision of security is not a reality in
Programme commenced a joint many environments. There is a need for
initiative to deal with security sector
pragmatic solutions that are not only based on
governance challenges in the Pacific.
our idea of what the legitimate functions for the
High level discussions were held with
State are, but the idea of the local community.
key stakeholders in five target
countries. These missions were
In addition, SSR often plays out in a gendered
supported by the Geneva Centre for
way. One participant suggested that any
the Democratic Control of Armed
Forces (DCAF). In April 2009, they
support to SSR should give greater recognition
convened a Regional Conference on to the importance of gender mainstreaming and
Security Sector Governance in the women s participation in discussions and reform
Pacific in Tonga to review the key process should be encouraged.7
findings and priorities identified in the
scoping missions. In 2010, PIFS and In regards to security sector reform, the
UNDP published Enhancing Security Roundtable agreed on the following points:8
Sector Governance in the Pacific
Region A Strategic Framework . · security is not SSR;

· SSR is a political process;

· SSR is primarily about capacity building;

· SSR should be part of wider public sector reform;

· SSR is often excluded from national strategies as a result of aid bias because some
aspects of SSR are not seen as eligible for Official Development Assistance;

· SSR should focus not only on the military, but also on the police, intelligence sector
and non-state security providers (and how to integrate them in the SSR process
noting the difference between non-State providers contracted by the State and
other groups who operate in the space illegitimately, such as militias);

7
See also S/RES 1325 (2000), S/RES 1820 (2008), S/RES 1888 (2009), S/RES 1889 (2009).
8
Points adapted from Karene Melloul, Accidental Partners? Listening to the Australian Defence and Police
Experience in Conflict-Affected and Fragile State, April 2010.

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· SSR can have unpredictable consequences because there are many complex factors
at play, such as political power, that can affect the end result of the SSR program;
and

· SSR needs to ensure reform of the security sector is matched and complemented by
strong democratic institutions (see Diagram 1).

SESSION FOUR: TRANSITIONAL JUSTICE

Transitional justice mechanisms are extraordinary in their nature as they encompass a wide
range of judicial and non-judicial responses adapted to the particular context of
post-conflict societies.9 These responses need to take into account the challenges of dealing
with a legacy of mass-scale violations. They go beyond traditional mechanisms of the justice
system and adopt a much wider view of how a state can best implement laws, programmes
and policies which allow the state to transition fully to a sustainable peace based on the
ROL.

Transitional justice frameworks are usually developed in times and places where
experiences of conflict or recent repression are raw. The inherent complexity that this
brings is particularly acute when the host government (and its bureaucracy) may be tainted
by the role it played in the conflict. For example, when those with alleged responsibility
remain in power. This makes approaching and implementing transitional justice not only
sensitive, but also highly political.

The International Criminal Court (ICC) represents an important development in bringing
perpetrators of international crimes to justice. Given its scope and acceptance, it represents
a major breakthrough in international law. Blanket amnesties are unacceptable and
immunity from prosecution as part of a peace deal will not stand for member states that
have ratified the Rome Statute on the ICC. The Roundtable discussed the jurisdiction of the
ICC in relation to states that have not ratified the Rome Statute. In doing so it was noted
that the greatest challenge to the effectiveness of the ICC is the lack of systematic
application of international law by States.

There are two dilemmas of transitional justice: how to pursue transitional justice without
neglecting regular justice mechanisms; and how to reconcile coming to terms with crimes
committed during conflict without compromising the future development of the post-
conflict community. Finding this balance is a difficult challenge in many post-conflict
settings, as calls for justice and calls for peace are sometimes said to be contradictory.

9
Transitional Justice can be defined as the full range of processes and mechanisms associated with a society s
attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve
justice and achieve reconciliation. The rule of law and transitional justice in conflict and post-conflict societies:
Report of the Secretary-General, UN DOC. S/2004/616 (23 August 2004) at para.

16


However, the community emphasis in most transitional justice discussions is how to
accommodate both justice and peace. In addition, investigation of abuses should be carried
out in a coordinated way and in a manner that maximises the use of evidence for formal
processes in a way that avoids witness retraumatisation and fatigue.

In Practice: Transitional Justice and The primary objectives of transitional justice
the Formal Court System include:

One participant shared the view that in · bringing to account those responsible for
the Solomons, a RAMSI mission Case past abuses;
Support Unit was developed to deal
with the backlog of tension trials that · providing reparation to victims;
was causing delay in the mainstream
· implementing the type of institutional
court system. While the program
reform necessary to prevent future abuses, and re-
resourcing was unsustainable in the
building civic trust in public institutions;
long term, it did provide immediate
relief to the overworked formal justice · encouraging reconciliation and consolidate
system and in doing so, helped build peace,; and
local capacity.
· promoting the ROL.

After presentations on transitional justice, the Roundtable discussed key issues including:

· the real risks of embarking on these processes where there is ambivalence by the
donor and/or host states;

· the way in which transitional justice is context specific and must be tailored to the
community seeking it;

· the interaction of informal and formal justice systems as part of transitional justice;

· the questions over the benefit of truth telling and how it may not be culturally
appropriate in all circumstances;

· the relative cost of transitional justice and trade-offs with other kinds of post-conflict
assistance and priorities; and

· the need for a clearer whole-of-government dialogue on Australia s approach to
transitional justice.

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In Practice: Transitional Justice in Timor Leste

After the violence and the Independence Referendum in 1999, there were strong calls
for justice in Timor Leste. The first response was the creation of specialised
investigation and prosecution mechanism for the prosecution of those responsible for
international crimes, as well as murder and sexual assaults. There was also discussion
focused on a potential truth and reconciliation institution. A steering committee was
set up that then consulted in 13 districts across Timor Leste to ask communities what
they expected of a truth and reconciliation commission. As a result, the community
made it clear that they did not want amnesties for serious crimes, they wanted formal
criminal prosecutions, but that a truth and reconciliation commission could help reveal
the pattern of abuses, recommend actions to avoid further violations and undertake
community based reconciliation of those responsible for less serious crimes.

A number of lessons learned were identified from the transitional justice program in
Timor Leste. Community consultation is vital with respect to shaping appropriate
transitional justice mechanisms. It is desirable that one form of transitional justice not
undercut another, but be looked upon as complementary. In relation to prosecution
efforts, it is important to promote equality of resources between the prosecution and
defence, and to ensure adequate non-legal support, such as translation services and
witness protection programs for those who choose to give evidence. In addition,
monitoring processes should also be institutionalised. International assistance can play
a key role in supporting transitional justice mechanisms, and can draw upon relevant
norms of international law (eg in relation to amnesties) and tools (eg OHCHR ROL
Tools).

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SESSION FIVE: WHOLE-OF-GOVERNMENT APPROACHES

The rationale behind a national whole-of-government approach to ROL programs in post-
conflict settings is greater efficiency and effectiveness. It is driven by the assumption that a
government s foreign engagements will have a more meaningful and sustainable impact
when government departments and agencies pursue a common strategy, have a shared
understanding of the problem, a common theory of change, and an agreed plan for
implementing such a strategy.

5.1 The Australian Approach

Over the past decade, Australia has been progressively In Practice: Whole-of-Government
strengthening its multiagency approach and Approaches in RAMSI
capabilities for conflict and disaster management
There are formal coordination
offshore. A key benefit of the Roundtable was sharing
mechanisms for RAMSI (both in-
information about the role that new government
country and in Australia) that
institutions have in the ROL space. The information
have been complemented by
provided below is derived from presentations by the
informal coordination and
National Security College, AusAID, Department of
consultation mechanisms with
Defence, Attorney-General s Department, Department
the host government,
of Foreign Affairs and Trade, Australian Federal Police
stakeholders, donors, non-
and the Asia Pacific Civil-Military Centre of Excellence.
government organisations and
It was stressed and re-iterated several times those
community groups. However,
Australian Government agencies and departments
effective coordination in RAMSI
need to work together at every stage of Australia s
is still arguably dependent upon
engagement with fragile States, starting from the pre-
on the interpersonal skills of the
conflict stage.
team.
Department of Prime Minister and Cabinet (PM&C)

PM&C provides high-level strategic advice to the Prime Minister and the Cabinet on matters
that are at the forefront of public and government administration. It is the central
coordinating agency in the Commonwealth. Most relevantly, the International Division of
PM&C provides advice, coordination and leadership on Australia s foreign, trade, aid and
treaty matters and priorities, including bilateral relations, relationships with regional and
international organisations, free trade negotiations and whole-of-government priorities for
the overseas aid program. It also incorporates the International Strategy Unit, which
focuses on developing innovative and forward-looking advice on policy challenges in the
medium to long term across the foreign and international security domains.10

10
<http://www.dpmc.gov.au/national_security/index.cfm> (25 October 2010)

19


Department of Foreign Affairs and Trade (DFAT)

DFAT provides foreign and trade policy advice to the Government and advances the
interests of Australia internationally. It also works with other Government agencies to
ensure that Australia's pursuit of its global, regional and bilateral interests is coordinated
effectively.11 DFAT is responsible for the Head of Mission (HOM) Ambassador, High
Commissioner and Consul-General or Permanent Representative. The HOM is Australia s
official representative overseas and is responsible for delivering a whole-of-government
response on any issue. The HOM has oversight of all Australian government agency
activities at overseas posts, not just those of DFAT.

Australian Agency for International Development (AusAID)

AusAID provides advice on international development policy and manages the planning and
delivery of Australia s overseas aid program. The objective of the aid program is to assist
developing countries reduce poverty and achieve sustainable development, in line with
Australia's national interest.12 AusAID contributes to Australia s broader international
economic, security and humanitarian objectives, with a particular focus on the Asia-Pacific
region.

The Australian Civilian Corps (ACC), located within AusAID, enables the rapid deployment of
trained civilian specialists that deploy to countries experiencing or emerging from disasters
and conflicts. The ACC supports stabilisation, recovery and development planning. Civilian
specialists are selected for their technical skills and ability to work in challenging overseas
environments. They come from both the Australian public sector and the broader
Australian community, and have a breadth of skills and experience.13 In relation to ROL
activities in post-conflict settings, the ACC could provide policy advice on a legal framework
and support stabilisation planning and delivery.

Department of Defence

The Department of Defence is responsible for the deployment of Australian Defence Force
personnel to operations overseas and within Australia to protect Australia and its national
interests, including UN mandated missions. In conflict situations and high threat overseas
environments, Defence will play a leading role in Australia s contribution to restoring peace
and security. It is the initial and primary guarantor of physical security. More recently, the
military can additionally take on mentoring and training roles. The Department of Defence
can also provide military advice on the restoration and maintenance of security in post-
conflict situations as well as situations of disaster response.

11
< http://www.dfat.gov.au/dept/index.html> (25 October 2010)
12
<http://ausaid.gov.au/about/default.cfm> (25 October 2010)
13
<http://www.ausaid.gov.au/acc/> (25 October 2010)

20


Asia Pacific Civil-Military Centre of Excellence

The Asia Pacific Civil-Military Centre of Excellence is an Australian Government initiative to
improve Australia s effectiveness in multi-agency civil-military engagement for conflict and
disaster management overseas. The Centre supports Government departments and
agencies and engages with non-government organisations and international partners,
including the UN, on civil-military issues to achieve focused outcomes for the region and
globally.14

Attorney General s Department (AGD)

AGD provides support to the government in the maintenance and improvement of
Australia s system of law and justice, as well as its national security and emergency
management systems. In regards to overseas deployments, AGD provides legal and policy
advice across government on issues involving public international law, including the legal
basis for the deployment, the domestic laws of the host state, the application of
international humanitarian law where applicable, and relevant human rights norms.

The International Legal Assistance Branch (ILAB) of AGD provides technical legal assistance
to countries in the Asia-Pacific and Africa to build capacity to combat transnational crime
and corruption, which threaten national and regional security. Our areas of legal expertise
in transnational crime are people smuggling, human trafficking, terrorism and terrorist
financing, money laundering and cybercrime laws. In the Pacific, we also deliver assistance
with domestic criminal and policing legislation. ILAB is also responsible for overseeing
Australia s law and justice (non-policing) deployees to Papua New Guinea under the
Strongim Gavman Program. Assistance programs are developed collaboratively with
partner countries in South and South East Asia and the Pacific. In Africa, ILAB works
primarily in collaboration with regional bodies and international organisations to deliver
programs. The types of assistance ILAB offers include bilateral or multilateral training
workshops, legal and policy advice on strengthening domestic laws, peer review of
legislation, and assistance with drafting laws.

Australian Federal Police (AFP)

The AFP provides Australia s international law enforcement and policing capacity, and is the
Government s chief source of advice on policing issues. The International Deployment
Group (IDG) of the AFP contributes to the development, maintenance or restoration of the
ROL in countries that seek Australia s support, as well as to UN missions. It attempts to
work within existing policing structures, working closely with local communities. The IDG

14
Asia Pacific Civil-Military Centre of Excellence, Strategic Plan 2009-2011, 1.

21


currently has 350 members serving in overseas missions to Cyprus, Solomon Islands, Sudan,
Timor-Leste, Nauru, Tonga, Vanuatu, Cambodia and Afghanistan.

The AFP Operational Response Group (ORG) falls under the function of the IDG and provides
a high-end tactical and specialist policing capability to respond to instability and crisis within
the region, as well as providing specialist support to AFP operations within Australia. The
primary focus of this group is international offshore operations.

National Security College

The broad objectives of the National Security College are to enhance the understanding and
critical thinking of security sector practitioners. It aims to help practitioners through shared
professional experiences, academic rigour and cutting edge research. The College is about
encouraging people to think through their assumptions and testing policy against different
imagined futures. It will draw on the resources of the Government Agencies and
Departments.

5.2 Whole of Government in Practice

There was discussion amongst Roundtable participants over what a whole-of-government
approach means in practice. One participant noted that a whole-of-government approach is
intended to harness the expertise and resources of all Government agencies and should not
be limited to the Commonwealth Government. For example, state and territory
governments have experience in areas such as corrections and prosecutions. It can also be
argued that whole-of-government could take the phrase whole-of-nation , as the private
sector and non-government organisations can also add value. However, it was noted by
another participant that whole-of-government approaches should not always be assumed as
the most effective or best way forward. There are many challenges and difficulties in
exercising a whole-of-government approach in practice, including coordination being
increasingly more difficult and demanding as more stakeholders are included within the
process and at multiple levels (micro level to macro level including policy development and
budgeting areas within multiple agencies).

During the Roundtable the following points were made by participants in regards to whole-
of-government approaches to ROL programs in post-conflict situations:

· the government should have a clear idea of what it wants to achieve and the
resources required;

· rule of law programs should have realistic timeframes and better defined
expectations;

· there should be greater focus on breaking down structural barriers between
agencies, which will require strong and high-level leadership; and

22


· the Solomon Islands model provides a good example of the whole-of-government
approach, but cannot be applied to every context.

CONCLUSIONS

The Roundtable brought together Australian Government Departments and Agencies
responsible for designing and creating rule of programs in post-conflict settings. As a result
of rich discussion and information sharing, key findings and conclusions have been
identified:

· programs must be tailored to local cultural conditions and also be adaptable to
change

· programs need to be based on realistic timeframes and expectations

· local ownership is critical

· all programs must be sustainable beyond donor contribution, and

· whole-of-government coordination requires continuing work, focus and
prioritisation.

6.1 Government Only Session

At the conclusion of the Roundtable, a half day Government-only session convened to
discussions the implications of the Roundtable for the Australian Government. Government
delegates discussed ways to move the rule of law agenda forward within Departments and
Agencies, as well as considering strategies to enhance future rule of law activities within the
region.

The Asia Pacific Civil-Military Centre of Excellence will continue to support the development
of the Australian Government s post-conflict rule of law programming capabilities. A suite
of future work programs working towards this objective have been identified and will be
developed in the near future.

23

Rule of Law Roundtable: Towards Best Practice in Post-Conflict Situations

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