What is the rule of law?
Rule of law refers to an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme. Laws must be consistent with international human rights norms and standards, legally certain, legally transparent, drafted with procedural transparency, and publicly promulgated.
This end state requires equal enforcement and equality before the law, independent adjudication of the law, fairness in the application of the law, and avoidance of arbitrariness. Access to justice—the ability of people to seek and obtain a remedy through informal or formal institutions of justice—is a mutually reinforcing component of rule of law. The rule of law requires the separation of powers and participation in decision-making. Rule of law is the ideal that states strive for; stabilization requires urgent focus toward this end.
What are the key rule of law challenges?
Historically, the justice system may have been repressive and discriminatory, particularly against marginalized populations, and may have been used only as a tool of powerful elites or criminal power structures. Impunity for those in power constitutes another common barrier to reform. Compounding this challenge is the likelihood that conflict has paid handsomely—through illicit means—leading to criminalization of state institutions, including the justice system. Public trust may be very low. The population may prefer to access justice through non-state, localized systems of justice or vigilante groups to solve grievances instead. The justice system may be severely debilitated or may have collapsed. Its infrastructure (e.g., court houses, public buildings, prisons, police stations, and ministries) may be destroyed, looted or dilapidated and in need of repair. Basic material resources may also be lacking. There may be a shortage of qualified rule of law actors (e.g., judges, court staff, police, prosecutors, prison officials, lawyers).
Why is the rule of law a necessary end state?
Without rule of law, criminal and politically motivated violence will perpetuate the threat that warring parties posed during violent conflict. A poorly functioning justice system will allow petty crime, violent crime, politically and ethnically motivated crime, sexual and domestic violence, and organized criminal activities to flourish. Crime may be perpetrated or tacitly supported by those in power, where government structures have become criminalized, and by former warring parties that have transformed into organized crime gangs. Unless groups that have been involved in violent conflict regard the justice system as a more attractive alternative to violence for resolving disputes, peace will not be sustainable. For the population, rule of law is necessary to ensure safety and security for individuals, families, property, and businesses and to allow freedom of movement to access public services such as education and health. Rule of law is the foundation for economic and political recovery and prosperity.
What are the necessary conditions?
•Just Legal Frameworks is a condition in which laws are consistent with international human rights norms and standards; are legally certain and transparent; are drafted with procedural transparency; are equitable, and are responsive to the entire population, not just powerful elites.
•Public Order is a condition in which laws are enforced equitably; the lives, property, freedoms, and rights of individuals are protected; criminal and politically motivated violence has been reduced to a minimum; and criminal elements (from looters and rioters to leaders of organized crime networks) are pursued, arrested, and detained.
•Accountability to the Law is a condition in which the population, public officials, and perpetrators of past conflict-related crimes are held legally accountable for their actions; the judiciary is independent and free from political influence; and horizontal and vertical accountability mechanisms exist to prevent the abuse of power.
•Access to Justice is a condition in which people are able to seek and obtain a remedy for grievances through formal or informal institutions of justice that conform with international human rights standards, and a system exists to ensure equal and effective application of the law, procedural fairness, and transparency.
•Culture of Lawfulness is a condition in which the general population follows the law and seeks to access the justice system to address its grievances.