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

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

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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 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 civilmilitary-
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.

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

    • 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 canhope to resuscitate societies shattered by conflict 11 Former United Nations Secretary General Kofi Annan at the opening of the fifty-ninth session of the UnitedNations General Assembly, 2004. 2
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTCONTENTS 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
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTFOREWORDThe 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 wasconvened with the aim of strengthening Australia s multiagency approach and capabilities forconflict 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 thepost-conflict period. The proposal for the Roundtable was developed in consultation withrelevant whole-of-government officials with responsibilities for Australian responses in post-conflict situations. The Roundtable was considered particularly timely due to the establishmentof new Australian Government capacity in this area including the Australian Civilian Corps, theNational Security College and the Centre itself.The Roundtable had five sessions: best practice in post-conflict situations; criminal justicesector; security sector reform; transitional justice and whole-of-government approaches. Ineach session a number of presentations were made by subject-matter experts, which theninformed and prompted discussion. The Roundtable then concluded with a Governmentofficials-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 aselect 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 clarityconcerning the various responsibilities of different agencies and actors in the field together witha greater appreciation of the interconnectedness of the issues and the need to continue to workto develop our expertise in this area.This Report provides a summary of key issues discussed at the Roundtable and includes researchmaterial to give a holistic report on the state of the art for rule of law It is a blend of researchmaterial, content from Roundtable presentations and comments made by participants duringdiscussion 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 wouldlike to acknowledge the outstanding contribution made by Dr Vivienne O Connor, Senior Rule ofLaw 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 thepresenters. Additionally, I would especially like to thank Ms Rachel Wallbridge for her workbehind the scenes organising the Roundtable and in preparing and researching this Report.Peter ThomsonGovernance and Rule of Law Program managerAsia Pacific Civil-Military Centre of Excellence 4
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTRoundtable Official Photograph: 26 October 2010The Roundtable at work 5
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTSESSION ONE: GROUND SETTINGIn the opening session of the Roundtable, facilitators Mr Peter Thomson and Dr VivienneO Connor established the scope for discussion, outlining initial issues for consideration andcanvassed recent developments in the rule of law (ROL) space. The need to share bestpractice between actors involved in ROL work and the need for a coherent framework forexercising 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 developingeffective ROL solutions was stressed as a key condition of successful Roundtablediscussions. In addition, the need for evidence-based approaches to ROL projects (includingmapping the existing system) was highlighted, noting that it requires a multi-disciplinaryapproach.The delivery of vital services such as justice and security are crucial functions of an effectivestate. Essential to this process is the ROL. While there is a diverse understanding amongstpractitioners of the definition of ROL, it can be summarised as the way in which individualsand government obey and are regulated by domestic or international law.2The diverse understanding of ROL was reflected in Roundtable discussions. One participantdefined ROL as security + justice = ROL. Another argued that any ROL definition can becritiqued for being either too inclusive or if a broader definition is taken, for having a lack ofclarity. Yet another participant noted that conflict is not a linear process and when and atwhat point a society moves from conflict into a post-conflict environment is oftencontested. In this Report, the following definition widely used in the UN Secretariat isadopted.2 The UN Secretary-General defines ROL as ...a principle of governance in which all persons, institutions andentities, 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 rightsnorms 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 legaltransparency. 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). 6
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTOne participant stressed that Australia needs to be realistic and focused about what isachievable in terms of ROL in post-conflict societies. In the short term, it will be aboutrestoring the coercive power of the State, balanced with constraints. Until consent isearned from the community, ROL will always be fragile.Building or re-establishing the ROL in a post-conflict environment is a difficult, complex andinherently political task. Because conflict is rooted in political dynamics, understanding thelocal context and finding solutions that are tailored to the local community is crucial to thesuccess of a ROL program. As one participant emphasised, it is important to have a strategyfor engaging with the local community and non-government sector right from thebeginning.SESSION TWO: CRIMINAL JUSTICE SECTOROften the most pressing challenge facing a post-conflict justice system is the overwhelmingprevalence of criminal conduct. Attempts to build a strong criminal justice sector, while vitalto ongoing peace, is a difficult and time consuming task. The physical infrastructure of thesystem may be damaged or destroyed. Criminal justice actors may have fled the countryduring the conflict, leaving a dearth of personnel. If there are justice actors remaining, theymay have been complicit in human rights violations or may lack the basic capacity to carryout their job. Another challenge is the sheer enormity of the task at hand and the length oftime 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, thejudicial system, penal institutions, prosecutions and criminal defence lawyers. Theseinstitutions are often broken and dysfunctional after years of conflict and consequentlythere is a long list of general reforms necessary.Participants emphasised that reform of the criminal justice system should be holistic andcover all sectors. For example, international police can arrest criminals, but if there areineffective courts or penal institutions, this can create potential human rights issues, withsuspects languishing in custody in substandard conditions for unreasonable periods of timeawaiting trial. In addition, reform must be sustainable and supportable by the host State shuman resource capacity, as creating a criminal justice system that is not affordable in thelong 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 withinthe Pacific context, as well as discussion about the complex challenges of non-state andcustomary justice systems. 7
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT2.1 PoliceThe first contact an offender or a victim has with the criminal justice system is usually withthe police. In many post-conflict countries, the local community s experience with thepolice is negative and in some instances, it may have been used as a coercive instrument inan abusive or fragile government. The concept of service-oriented policing may be far frommost people s experience.Types of assistance measures for post-conflict police In Practice: Police Procedureforces 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 specificintervention context was the most important step in police reform. As one Roundtablepresentation canvassed, attempts to recreate best practice policing models regardless ofcontext will inevitably fail, as the ROL experiences of well-performing countries cannot beautomatically transferred to those that are not performing well. In addition, the reform ofthe police service should be gradual and be in line with political and social transition. Thispoint 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 environmentand context. The geography of the Solomon Islands means that the police force isessentially a maritime organisation and extra maritime capacity within this context isessential. RAMSI still faces major challenges today including corruption, unfinished trials,and most crucially limited employment opportunities, in both the formal or informaleconomy and particularly for young men. 8
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTDuring the Roundtable discussion a number of points in relation to policing wereemphasised, 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 ProsecutionsIn the course of conflict court buildings may have In Practice: Prosecutor Trainingbeen destroyed or damaged and basic resources mayhave been looted. However, the non-existence of A participant who works in thebasic infrastructure is not the only problem or even Pacific noted that one of the biggestthe major problem in re-establishing the court challenges involves attracting, training and retaining prosecutorssystem. The pre-existing court system may have within the formal justice system. Abeen ineffective, remote, slow and costly. On lack of experienced or trainedoccasion court staff may have been implicated in prosecutors means that cases arehuman 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 frustrationlevels of corruption, courts may lack independence and further insecurity.and the population may see the courts as illegitimateand 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); 9
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT · the intervention program supporting customaryIn Practice: Prosecutions in the justice initiatives need to address some of the humanSolomon Islands rights and gender inequality issues (for example, in the Solomon Islands the customary justice system is maleOne participant observed that dominated);after the breakdown of the legalsystem in the Solomon Islands, · what, if anything, can an intervention achieve inthere was a lack of public the immediate to short-term and how to engage localconfidence 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 resourcesthat most of the criminal cases (including human resources) will often drive thewere being prosecuted by police composition of the international deployment team inprosecutors who arguably lacked the first stage; andappropriate training and · sustainability and the need to consider whethereducation. This led to mistrials structure and reform processes are sustainable in theand the inefficient operation of country over the long term before implementing thosethe legal system. changes.2.3 Correctional InstitutionsTypically the corrections system in a post-conflict state, where prisons have not beendestroyed by war, are dilapidated and run down. Post-conflict prisons are generallyovercrowded, mostly with individuals who have not yet been tried. These conditionsrepresent a threat to the health of detainees and to the community at large. The number ofsuspects 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 maximumsentence for the alleged crimes. Another common problem is that prison records may notexist and therefore it may not be clear how many people are in detention or whether theyare there legally.Compounding these problems, prison staff may have committed human rights abusesduring the conflict or may not have the capacity to run prisons in a manner consistent withinternational standards. Unfortunately correctional institution reform is often notprioritised and is often underfunded. 10
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTAgain 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 moneyis 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 Systems3Most people in post-conflict states access dispute resolution other than through the formaljustice system. For years international ROL practitioners largely ignored informal systems,often because of a lack of understanding of them and instead focused exclusively on theWestern-style formal justice system and its reform.More recently however, the international community has realised that these customary orinformal systems matter and that they need to be understood and worked with as part ofefforts to promote the ROL. Some justify engagement with these systems from a strategicperspective, arguing that where formal justice mechanisms may have disappeared due toconflict, customary justice systems may be crucial to ensuring immediate dispute resolutionand law and order. Others justify engagement on the basis that despite their flaws, they areoften the preferred and most locally trusted means of justice delivery in post-conflict statesand should be prioritized on the basis of national perspectives and preferences. For the3 Customary justice systems can be defined as community-based social regulation and dispute resolutionpractices that are distinct from, even if influenced by and intertwined with, the state sponsored western-stylejustice system. The term encompasses a vast array of practices that vary from community to community and isnot meant to imply a single, uniform system. Yet what they generally have in common is their origin inlongstanding 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
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTlocal population they represent a cost-effective, accessible and reliable form of disputeresolution.4It was noted during the Rountable that that formal and customary justice systems often overlapand problems around gender inequality and treatment of juveniles exist across both thestate and non-State systems within the Pacific region. Generally there needs to be focusedand appropriately balanced support to reform and development in both systems. However,making funds available for informal justice systems does have some degree of risk, asunintended consequences can result.To finish up day two of the program, Roundtable In Practice: Informal versus formalparticipants broke into smaller groups for more justice systemsdetailed discussions about the different aspects ofthe criminal justice system. These discussions One participant shared with theidentified 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 defectstowards juvenile s rights and exercise forms of punishment that are prohibited under international law. Officeof the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States:Mapping the Justice Sector, United Nations, 2006, 14. 12
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTSESSION THREE: SECURITY SECTOR REFORMSecurity Sector Reform (SSR) is a critical element of ROL reform.5 SSR provides far greatercontrol and accountability by civil authorities, including parliamentary oversight, of military,police and institutions. The breadth and scope of SSR is largely undefined. Discrepanciesand 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 themanagement, provision and oversight of security in a country.6 In terms of what securitymeans, 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 theUnited Nations Development Programme and the Pacific Islands Forum Secretariat:Enhancing Security Sector Governance in the Pacific Region A Strategic Framework. Thepublication focuses on the need for a new strategic framework in the Pacific, which willcomplement existing reform and capacity building efforts of police, military, and customsand immigration agencies and will result in greater accountability and legitimacy of securityinstitutions. The publication is intended to support regional and national stakeholders todevelop appropriate policies and programming.5 The 2008 Report of the Secretary General describes SSR as a process of assessment, review andimplementation as well as monitoring and evaluation led by national authorities that has as its goal theenhancement of effective and accountable security for the State and its peoples without discrimination andwith full respect for human rights and the ROL . Report of the Secretary General, Securing Peace andDevelopment: 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 SupportingSecurity Sector Reform, UN Doc A/62/659 - S/2008/392, 3 January 2008, 5. 13
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTDiagram 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 ombudsmenSource: Internally produced by the Asia Pacific Civil-Military Centre of ExcellenceAs 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 fromthe host state on the need for reform. This is because some people are set to loose andsome set to gain from any changes. The Roundtable then noted after issues of demand andconsent 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 14
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT · 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 PoliceExperience in Conflict-Affected and Fragile State, April 2010. 15
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT · 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 JUSTICETransitional justice mechanisms are extraordinary in their nature as they encompass a widerange of judicial and non-judicial responses adapted to the particular context ofpost-conflict societies.9 These responses need to take into account the challenges of dealingwith a legacy of mass-scale violations. They go beyond traditional mechanisms of the justicesystem and adopt a much wider view of how a state can best implement laws, programmesand policies which allow the state to transition fully to a sustainable peace based on theROL.Transitional justice frameworks are usually developed in times and places whereexperiences of conflict or recent repression are raw. The inherent complexity that thisbrings is particularly acute when the host government (and its bureaucracy) may be taintedby the role it played in the conflict. For example, when those with alleged responsibilityremain in power. This makes approaching and implementing transitional justice not onlysensitive, but also highly political.The International Criminal Court (ICC) represents an important development in bringingperpetrators of international crimes to justice. Given its scope and acceptance, it representsa major breakthrough in international law. Blanket amnesties are unacceptable andimmunity from prosecution as part of a peace deal will not stand for member states thathave ratified the Rome Statute on the ICC. The Roundtable discussed the jurisdiction of theICC in relation to states that have not ratified the Rome Statute. In doing so it was notedthat the greatest challenge to the effectiveness of the ICC is the lack of systematicapplication of international law by States.There are two dilemmas of transitional justice: how to pursue transitional justice withoutneglecting regular justice mechanisms; and how to reconcile coming to terms with crimescommitted during conflict without compromising the future development of the post-conflict community. Finding this balance is a difficult challenge in many post-conflictsettings, 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 sattempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, servejustice 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
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTHowever, the community emphasis in most transitional justice discussions is how toaccommodate both justice and peace. In addition, investigation of abuses should be carriedout in a coordinated way and in a manner that maximises the use of evidence for formalprocesses 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. 17
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTIn Practice: Transitional Justice in Timor LesteAfter the violence and the Independence Referendum in 1999, there were strong callsfor justice in Timor Leste. The first response was the creation of specialisedinvestigation and prosecution mechanism for the prosecution of those responsible forinternational crimes, as well as murder and sexual assaults. There was also discussionfocused on a potential truth and reconciliation institution. A steering committee wasset up that then consulted in 13 districts across Timor Leste to ask communities whatthey expected of a truth and reconciliation commission. As a result, the communitymade it clear that they did not want amnesties for serious crimes, they wanted formalcriminal prosecutions, but that a truth and reconciliation commission could help revealthe pattern of abuses, recommend actions to avoid further violations and undertakecommunity based reconciliation of those responsible for less serious crimes.A number of lessons learned were identified from the transitional justice program inTimor Leste. Community consultation is vital with respect to shaping appropriatetransitional justice mechanisms. It is desirable that one form of transitional justice notundercut another, but be looked upon as complementary. In relation to prosecutionefforts, it is important to promote equality of resources between the prosecution anddefence, and to ensure adequate non-legal support, such as translation services andwitness protection programs for those who choose to give evidence. In addition,monitoring processes should also be institutionalised. International assistance can playa key role in supporting transitional justice mechanisms, and can draw upon relevantnorms of international law (eg in relation to amnesties) and tools (eg OHCHR ROLTools). 18
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTSESSION FIVE: WHOLE-OF-GOVERNMENT APPROACHESThe 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 agovernment s foreign engagements will have a more meaningful and sustainable impactwhen government departments and agencies pursue a common strategy, have a sharedunderstanding of the problem, a common theory of change, and an agreed plan forimplementing such a strategy.5.1 The Australian ApproachOver the past decade, Australia has been progressively In Practice: Whole-of-Governmentstrengthening its multiagency approach and Approaches in RAMSIcapabilities for conflict and disaster management There are formal coordinationoffshore. A key benefit of the Roundtable was sharing mechanisms for RAMSI (both in-information about the role that new government country and in Australia) thatinstitutions have in the ROL space. The information have been complemented byprovided below is derived from presentations by the informal coordination andNational Security College, AusAID, Department of consultation mechanisms withDefence, 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 andIt was stressed and re-iterated several times those community groups. However,Australian Government agencies and departments effective coordination in RAMSIneed to work together at every stage of Australia s is still arguably dependent uponengagement with fragile States, starting from the pre- on the interpersonal skills of theconflict 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 mattersthat are at the forefront of public and government administration. It is the centralcoordinating agency in the Commonwealth. Most relevantly, the International Division ofPM&C provides advice, coordination and leadership on Australia s foreign, trade, aid andtreaty matters and priorities, including bilateral relations, relationships with regional andinternational organisations, free trade negotiations and whole-of-government priorities forthe overseas aid program. It also incorporates the International Strategy Unit, whichfocuses on developing innovative and forward-looking advice on policy challenges in themedium to long term across the foreign and international security domains.1010 <http://www.dpmc.gov.au/national_security/index.cfm> (25 October 2010) 19
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTDepartment of Foreign Affairs and Trade (DFAT)DFAT provides foreign and trade policy advice to the Government and advances theinterests of Australia internationally. It also works with other Government agencies toensure that Australias pursuit of its global, regional and bilateral interests is coordinatedeffectively.11 DFAT is responsible for the Head of Mission (HOM) Ambassador, HighCommissioner and Consul-General or Permanent Representative. The HOM is Australia sofficial representative overseas and is responsible for delivering a whole-of-governmentresponse on any issue. The HOM has oversight of all Australian government agencyactivities 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 anddelivery of Australia s overseas aid program. The objective of the aid program is to assistdeveloping countries reduce poverty and achieve sustainable development, in line withAustralias national interest.12 AusAID contributes to Australia s broader internationaleconomic, security and humanitarian objectives, with a particular focus on the Asia-Pacificregion.The Australian Civilian Corps (ACC), located within AusAID, enables the rapid deployment oftrained civilian specialists that deploy to countries experiencing or emerging from disastersand conflicts. The ACC supports stabilisation, recovery and development planning. Civilianspecialists are selected for their technical skills and ability to work in challenging overseasenvironments. They come from both the Australian public sector and the broaderAustralian community, and have a breadth of skills and experience.13 In relation to ROLactivities in post-conflict settings, the ACC could provide policy advice on a legal frameworkand support stabilisation planning and delivery.Department of DefenceThe Department of Defence is responsible for the deployment of Australian Defence Forcepersonnel to operations overseas and within Australia to protect Australia and its nationalinterests, including UN mandated missions. In conflict situations and high threat overseasenvironments, Defence will play a leading role in Australia s contribution to restoring peaceand security. It is the initial and primary guarantor of physical security. More recently, themilitary can additionally take on mentoring and training roles. The Department of Defencecan 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
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTAsia Pacific Civil-Military Centre of ExcellenceThe Asia Pacific Civil-Military Centre of Excellence is an Australian Government initiative toimprove Australia s effectiveness in multi-agency civil-military engagement for conflict anddisaster management overseas. The Centre supports Government departments andagencies and engages with non-government organisations and international partners,including the UN, on civil-military issues to achieve focused outcomes for the region andglobally.14Attorney General s Department (AGD)AGD provides support to the government in the maintenance and improvement ofAustralia s system of law and justice, as well as its national security and emergencymanagement systems. In regards to overseas deployments, AGD provides legal and policyadvice across government on issues involving public international law, including the legalbasis for the deployment, the domestic laws of the host state, the application ofinternational humanitarian law where applicable, and relevant human rights norms.The International Legal Assistance Branch (ILAB) of AGD provides technical legal assistanceto countries in the Asia-Pacific and Africa to build capacity to combat transnational crimeand corruption, which threaten national and regional security. Our areas of legal expertisein transnational crime are people smuggling, human trafficking, terrorism and terroristfinancing, money laundering and cybercrime laws. In the Pacific, we also deliver assistancewith domestic criminal and policing legislation. ILAB is also responsible for overseeingAustralia s law and justice (non-policing) deployees to Papua New Guinea under theStrongim Gavman Program. Assistance programs are developed collaboratively withpartner countries in South and South East Asia and the Pacific. In Africa, ILAB worksprimarily in collaboration with regional bodies and international organisations to deliverprograms. The types of assistance ILAB offers include bilateral or multilateral trainingworkshops, legal and policy advice on strengthening domestic laws, peer review oflegislation, and assistance with drafting laws.Australian Federal Police (AFP)The AFP provides Australia s international law enforcement and policing capacity, and is theGovernment s chief source of advice on policing issues. The International DeploymentGroup (IDG) of the AFP contributes to the development, maintenance or restoration of theROL in countries that seek Australia s support, as well as to UN missions. It attempts towork within existing policing structures, working closely with local communities. The IDG14 Asia Pacific Civil-Military Centre of Excellence, Strategic Plan 2009-2011, 1. 21
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORTcurrently 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 providesa high-end tactical and specialist policing capability to respond to instability and crisis withinthe region, as well as providing specialist support to AFP operations within Australia. Theprimary focus of this group is international offshore operations.National Security CollegeThe broad objectives of the National Security College are to enhance the understanding andcritical thinking of security sector practitioners. It aims to help practitioners through sharedprofessional experiences, academic rigour and cutting edge research. The College is aboutencouraging people to think through their assumptions and testing policy against differentimagined futures. It will draw on the resources of the Government Agencies andDepartments.5.2 Whole of Government in PracticeThere was discussion amongst Roundtable participants over what a whole-of-governmentapproach means in practice. One participant noted that a whole-of-government approach isintended to harness the expertise and resources of all Government agencies and should notbe limited to the Commonwealth Government. For example, state and territorygovernments have experience in areas such as corrections and prosecutions. It can also beargued that whole-of-government could take the phrase whole-of-nation , as the privatesector and non-government organisations can also add value. However, it was noted byanother participant that whole-of-government approaches should not always be assumed asthe most effective or best way forward. There are many challenges and difficulties inexercising a whole-of-government approach in practice, including coordination beingincreasingly more difficult and demanding as more stakeholders are included within theprocess and at multiple levels (micro level to macro level including policy development andbudgeting 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
    • ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT · the Solomon Islands model provides a good example of the whole-of-government approach, but cannot be applied to every context.CONCLUSIONSThe Roundtable brought together Australian Government Departments and Agenciesresponsible for designing and creating rule of programs in post-conflict settings. As a resultof rich discussion and information sharing, key findings and conclusions have beenidentified: · 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 SessionAt the conclusion of the Roundtable, a half day Government-only session convened todiscussions the implications of the Roundtable for the Australian Government. Governmentdelegates discussed ways to move the rule of law agenda forward within Departments andAgencies, as well as considering strategies to enhance future rule of law activities within theregion.The Asia Pacific Civil-Military Centre of Excellence will continue to support the developmentof the Australian Government s post-conflict rule of law programming capabilities. A suiteof future work programs working towards this objective have been identified and will bedeveloped in the near future. 23