United Nations and the International Rule of Law - Assignment Example

United Nations and the International Rule of Law A. Global Governance and the UN Global governance tends to make states less prominent, while increasing the involvement of non – state institutions. Moreover, while the states do not participate actively in the rule making, norm setting processes, and monitoring of compliance, the international and non – state actors are significantly active in these areas. Global governance can be treated as multilevel governance, which is made at local, regional, subnational, national, and international levels. On the other hand, in international governance, the states and intergovernmental institutions make the norms and rules1. The rule of law is an important principle of governance that subjects people, institutions, entities, public and private organisations, and the state to the laws of the state. The United Nations (UN) has upheld this doctrine of rule of law, and considered it to be an inherent principle of the system of governance. As such, the laws of the state should be consistent with the norms of international human rights2. The governments have to initiate measures to ensure adherence to the principles of the law, and promote the supremacy of law. Its principal features include equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision – making processes, legal certainty, and transparency in all legal matters3.Moreover, the rule of the law requires governments to prevent arbitrariness. An effective global governance model is characterised by a balancing of world powers, regional support, and trust. Negotiations play an important role in building trust and support. For instance, peacekeeping operations are exercised at the international level, so as to restore peace in troubled areas. A majority of these operations have faced serious challenges4. As such, the output of a non – hierarchical system of international and transnational institutions constitutes global governance. The behaviour of the various stakeholders is influenced by the international regimes, international global organisations and the transnational regimes5. Thus, global governance is a form of multilevel governance that involves governance at both the national as well as the international levels. In addition, there is governance at the local, regional and subsidiary national levels. International governance systems are affected by globalisation in three major ways. The first of these relates to the increase in the gap between the rich and the poor. This can be understood as the failure of the international governance mechanism to promote social welfare6. Another influence of globalisation is the increasing participation of trans – boundary market forces in international affairs, which results from economic liberalisation, deregulation, and privatisation. This brings about an imbalance within the international and transnational stakeholders. Finally, globalisation causes the stakeholders of the civil society to respond to the failure of the international governance, by effecting change to the balance within the triad formed by international and transnational stakeholders. This is achieved by forming alliances and protesting against the undesirable outcomes of globalisation7. Peacekeeping can succeed only if the rule of law prevails. This requires improved confidence in correctional services, and the police and justice systems. Rule of law is a political and legal structure that ensures the accountability of the State, individuals and institutions. Consequently, it is to be promoted if peace is to be maintained in Liberia. As such, laws have to be made universally known, implemented impartially and adjudicated independently8. The provision of assistance for promoting the rule of law is founded on the norms of the UN. These standards are based on human rights law, humanitarian law, criminal law and refugee law that apply at the global level. However, such assistance does not deviate from national ownership, and the requirements and priorities of the country in question, and its cultural and legal traditions9. The UN Development Programme (UNDEP) and the UN Democracy Fund (UNDEF) implement the activities of the UN that support democracy. This work is also carried out by the Department of Peacekeeping Operations (DPKO), Department of Political Affairs (DPA) and the Office of the High Commissioner for Human Rights (OHCHR)10. These activities are part and parcel of the UN’s initiatives to promote human rights, development, and peace and security. Some instances of these activities are enabling parliaments and decentralised local governance structures to improve the checks and balances that underpin democracy, promotion of human rights, rule of law and access to justice. The latter is facilitated by promoting the effectiveness and impartiality of national human rights machinery and judicial systems11. Moreover, these activities include measures to ensure freedom of expression and access to information by reinforcing media capacities and legislation. In addition, there is provision of electoral assistance and long term support for electoral management bodies. A major initiative is the promotion of measures to encourage the participation of women in public and political life12. B. Liberian War The African state of Liberia continues to face a number of challenges relating to reconstruction and development. After having undergone a highly destructive civil war, this country is engaged in reconstructing its economy and development. These challenges include social disintegration, poverty, food insecurity, illiteracy, and unemployment. The long standing despotism in Liberia has proved to be a major impediment to its economic growth. The Liberian government has initiated several measures to address these challenges. Furthermore, it is implementing new reforms in all areas of the economy and strengthening its public sector institutions13. The government has to involve the public in these initiatives, if it is to succeed in reconstructing its economy and rejuvenating its institutions. Liberia has implemented the Poverty Reduction Strategy 2008 – 2011, which is consistent with its Millennium Development Goal. This programme has been welcomed by the UN14. Moreover, there is an urgent necessity for reforms in other areas, in order to address the humanitarian challenges. In Liberia, most of the people do not enjoy basic human rights, such as the right to healthcare, safe water, sanitation, shelter, and education. There are a large number of ex – combatants, refugee returnees, internally displaced persons, and a vast war affected population. The government has to adopt measures to integrate these sections of society. The UN has observed that these problems are being addressed by the Poverty Reduction Strategy programme15. The United Nations Development Assistance Framework (UNDAF) defines the specific areas of response to the challenges faced by Liberia, in the areas of poverty alleviation and development. The UN Common Country Assessment for Liberia has provided a detailed analysis. This analysis has isolated five outcomes of the UNDAF that correlated to the timeframe of the poverty reduction strategy16. In the year 2007, regional consultations were held, in which county and district authorities had participated. These consultations provided a further authentication for these five outcomes. The significance of these outcomes is that they take into consideration human rights and gender perspectives, while addressing national priorities. The UN Mission in Liberia (UNMIL) will be transferred in a phased manner to the national entities in due course. Some of the national programme outcomes are the provision of security, conflict management, and the prevention of violence17. Some of the losses that had resulted from the decade long Liberian conflict were a million deaths, destruction of the infrastructure, displacement of the population, and an ever escalating refugee problem. Quite a few studies have been conducted, regarding this conflict. However, none of these studies have concentrated on the reasons behind the conflict. Moreover, strategies for promoting peace and unity have not been proposed18. Subsequent to consultations between the Organization of African Unity (OAU), the Economic Community of West African States and the UN Security Council, the mandate of the UN Observer Mission in Liberia (UNOMIL) was modified. As a consequence, investigation of alleged cease fire infringements, monitoring of compliance with military provisions related to peace agreements, and authentication of the election process were included19. In addition, the UNOMIL has undertaken the task of maintaining assembly sites and has consented to provide its assistance in implementing a demobilisation of combatants programme. Furthermore, it will support activities related to humanitarian assistance, investigate and provide reports regarding violations of human rights, and promote the efforts of the Economic Community of West African States (ECOWAS) and the transitional government in Liberia in implementing the peace agreements20. The UN Security Council unanimously adopted resolution 1020 of 1995, and stipulated that the number of military observers were to be limited to 160. In addition, it directed the ECOWAS Monitoring Group to adopt the required measures for providing security to the civilian staff and observers of the UNOMIL21. A major observation of the UN Security Council was that these entities should work in close collaboration at all levels However, considerable delay was noticed in the process of disengaging the opposing forces and there were several serious incidents of cease fire violations. These developments caused the UN Security Council to advise the Liberian National Transitional Government to avert further violations and to preserve the pace of the peace initiatives22. After conducting a review of the progress report S/1995/1042, the then Secretary – General of the UN, Boutros – Ghali declared that the Abuja Agreement of 1995 had not been implemented within the stipulated time. A major reason cited for the delay was the inadequacy of the logistical support provided, which had been undertaken on a voluntary basis by some nations that were not members of the ECOWAS23. Apparently, justice is not provided in a swift manner in Liberia. For instance, in the year 2010 conflicts erupted in the northern Lofa County, between the Muslim Mandingo and Christians. The chairman of the Truth and Reconciliation Commission has declared that the government has not acted swiftly to address the corruption and poverty that had resulted in the war24. A warning note was struck by the chairman of the Truth and Reconciliation Commission, when he declared that ignoring these issues could result in a much more serious conflict in Liberia. Public confidence in national security is apparently based on the US trained army of Liberia. However, this has to be accompanied by drastic changes to the justice system, which has taken no action against those members of the transitional government, who had been accused of having misappropriated enormous amounts of money25. Initiatives to promote the rule of law in Liberia by the US government and other entities has met with limited success. This is depicted by the scanty influence on the access of citizens to effective, efficient and fair justice. Several factors have been identified for this undesirable state of affairs26. One of these relates to the failure to assess the impact of rule of law programming in Liberia. This is worsened by the absence of data pertaining to the rule of law. It becomes difficult arrive at any meaningful comparison regarding the extant situation, due to the absence of baseline data. Moreover, no benchmarks had been specified for monitoring and reporting the progress achieved by the reforms27. Subsequent to the war in Liberia, several of the implementers of justice reforms, with a view to promote a democratic society, expended vast resources while making available capacity building activities and general advice pertaining to daily functioning28. The focus of these activities was to provide a vast array of institutions and commissions with rudimentary judicial training and mentoring. However, this was not concentrated on the justice sector. In addition, the majority of the implementers had not been accorded with specific responsibility regarding the programme functions29. Another drawback was the presence of open – ended action plans. Furthermore, scant regard was accorded to supervising and reporting upon the exercise of developing and implementing programmes for specific problems. These factors have made it difficult to assess whether any tangible progress had been procured in reforming the rule of law in Liberia. The rule of law actors have clearly shown that they lack coordination. This has resulted in a reform agenda among donors that is haphazard30. In addition, the various stakeholders lack conviction regarding the total benefit of any donor’s programme. Subsequent to the security guarantees provided by the UNMIL, the UN and other global agencies commenced humanitarian and infrastructure development projects. With a strength of 15,000, the UNMIL began to supervise disarmament and demobilisation of the former fighters. It also provided valuable assistance to the UN and other agencies to restore fundamental services in Liberia. By the year 2006, peace made its presence felt, especially after Sirleaf was democratically elected as its president31. The Liberian conflict has conclusively proved that the capacity of the international community to preserve humanitarian operations, while promoting security and peace is inadequate. The ECOWAS intervened militarily in Liberia and it was supported by the international agencies. This intervention has to a degree, improved the condition of the civilian population32. Notwithstanding these achievements, serious doubts have been raised regarding the legitimacy, impartiality and effectiveness of the ECOWAS intervention. The problem was worsened due to the delayed entry of the UN, which failed to bring about any permanent improvements33. The natives of this war torn nation believe that rehabilitation and reintegration are their major challenges. It has been suggested by several scholars that the UN, ECOWAS and other international agencies should continue their efforts in Liberia till stability is firmly in place. Moreover, the international community has to correlate its peace building strategy with long term economic, political and social change. This has to be achieved by improving education, training, public sector reform, and the regulation of political parties34. The Liberians have been demanding affordable, accessible and timely justice. These expectations have not been realised to any major extent. The cost of justice is increased and complicated due to the presence of registration fees, fuel charges for police investigators, cost of food to the detained accused, lawyers’ fees, bribes, and indirect expenditure35. Furthermore, the Liberian justice system is based on principles that differ drastically from what the majority of the Liberians value. A very narrow approach is adopted by the courts, which prevents it from resolving the fundamental problem behind any issue. To their credit, the Liberians firmly believe that any corrective measure of the justice system should also repair social relations between the antagonists. Therefore, redressive action should bring about a genuine reconciliation between the disputants36. Liberians regard social reconciliation to be more important than compensation or repair of the harm caused to the victim. The traditional system is favoured by the majority of the people, as it addresses the vast array of problems that these people have to face. Some instances, are public insults and the use of witchcraft to harm others. The formal system does not regard these issues as offenses. This causes serious problems and issues related to security to remain unresolved. The various international agencies, at work in Liberia, have focused their efforts on strengthening the formal justice system, repairing the courts, providing training to legal and judicial officers, and strengthening legislation that promotes and preserves fundamental rights37. These measures have failed to recognise the fact that the majority of the Liberians tend to settle their differences, by means of the traditional institutions and mechanisms. Thus, the formal justice system is viewed as being unequal to the task of dispensing satisfactory justice. It is in fact, deemed to be a highly effective device for promoting the interests of the powerful and influential sections of society to the detriment of the ordinary citizen38. The establishment of an effective human rights regime, requires the overcoming of certain major obstacles. For instance, the present day global governance institutions are controlled by certain power structures. These have to be democratised and made suitable for the existing system. It is necessary for the international community to achieve a balance between adequate representation and effect decision making. Judges, lawyers and human rights monitors have to be provided with the necessary legal training, if human rights are to be internalised effectively. The importance of this becomes very clear during times of war and in areas of limited statehood39. Conclusion As per the above discussion, it can be surmised that the initiatives taken by the UN in making the situation in Liberia to a better state are not adequate. There are many reasons for the failure of UN mission in maintaining the rule of law in Liberia. The UN with the alliance of other organisations had taken measures to install many institutions to contain the problems in war torn Liberia. However, the lack of co-operation and co-ordination among all the stake holders made the efforts in this regard unfruitful. The justice system in Liberia is inequitable and opaque, and favours the wealthy, powerful, and socially connected entities. There is great delay in arriving at judgements, and enforcement of court rulings in practically non – existent. Thus, the justice system, imposes a heavy burden upon the victim. It provides the influential and wealthy with a mechanism to serve their own selfish ends. In addition, the justice system in Liberia is so expensive, that it cannot be reached freely by the citizens. Since the global governance institutions are controlled by major powerful forces of the world, measures should be taken to accord training to the decision makers to act efficiently and represent the innocent people on the international systems. It is inevitable that a balance should be maintained between adequate representation and effective decision making. Since Liberians are interested in resolving their disputes through traditional systems and accord scant regard to the formal justice system, measures should be taken to improve the traditional justice methods in providing justice in local issues. The provision of support from the international organisations such as ECOWAS proved to be partial and ineffective. There is every need for establishing a strong human rights regime to protect the people against human rights violations. It can be concluded that initiatives taken by the UN in maintaining the rule of law in post war Liberia are unsuccessful and ineffective. Bibliography Active Learning Network for Accountability and Performance in Humanitarian Action, accessed at http://www.alnap.org/pool/files/erd-2713-summary.pdf 7 January 2013. 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