Fragile States, the Rule of Law,

and the Role of Canadian Judges: Issues and

Options

Phillip Rawkins
Rawkins International Associates

With the Financial Support of the

Stabilization and Reconstruction Task Force (START),
Department of Foreign Affairs and International Trade

With the support of Lisa Joly,

Research Officer
National Judicial Institute

February 9, 2007
 INTRODUCTION AND ACKNOWLEDGEMENTS
This report was prepared for the National Judicial Institute (NJI), Ottawa, and supported
financially by the START (Stabilization and Reconstruction Task Force) Programme of the
Department of Foreign Affairs and International Trade (DFAIT) of the Government of Canada.
The work was undertaken by the author, with support throughout by Lisa Joly, Research Officer
of the NJI, who also participated in most meetings and interviews conducted by the author as
part of the research for the project. The initial planning for the work was informed by intensive
discussions involving the author and Ms. Joly, with Ms. Brettel Dawson, Academic Director of
NJI, and Mr. David Spring, Consultant to the Institute. The directions for the research and report
preparation were confirmed through meetings with Ms. Deena El-Sawy, of the Conflict
Prevention and Peace Building Group (IRC), DFAIT’s Manager for the project. A discussion with
Mr. Shawn Barber, Director of IRC, was helpful in facilitating the focusing of the report.

Additional interviews and meetings, conducted on a face-to-face basis and by telephone, were
held with a small number of informants with experience or responsibilities relating to fragile
states. The list of those interviewed includes program managers, advisors and analysts in
DFAIT, CIDA and the Department of Justice, as well as a few experienced international
consultants. Two judges with considerable experience in working in developing countries and
fragile states were interviewed, as were a small number of specialists with international
organizations. A full list of those interviewed is attached as Appendix A.

In addition to interviews, the author reviewed on a selective basis relevant documents drawn
from the professional and academic literature on fragile states; fragile states and development;
fragile and post-conflict states and rule of law; and, rule of law and development. All documents
consulted in detail are footnoted in the report.

A number of those consulted were generous in providing assistance through the sharing of
documents and reports, as well as additional contacts. Those who provided assistance of this
kind included: Ms. Marcia Cran, Deputy Regional Manager of the UNDP Regional Centre in
Bangkok; Mr. David Marshall of the UN Secretariat; Ms. Flora Liebich, Senior Governance
Advisor, the Canadian International Development Agency (CIDA), Asia Branch; and a small
group of experienced international consultants: Ms. Veronique Lamontagne, Mr. David Lee and
Mr. Joe Stern.

The author wishes to express his appreciation to all of those who have cooperated in this short
research project.
1.0 FRAGILE STATES
1.1 Definitions, Characteristics, and Typologies
The term “fragile states” has increasing currency in the discourse of international diplomacy
and cooperation. While it is a term that conveys a visual message, it also lacks a precise
meaning. International organizations, including multilateral and bilateral donors, have
generally described such states in terms of three dimensions1:

i. Functionality: fragile states are defined as those lacking either the capacity and/or
the will to perform a set of core functions necessary to provide for the security and
well-being of their citizens.
ii. Outputs: fragile states are defined as unable to cope effectively with poverty, violent
conflict, terrorism, refugee flows, organized crime, or epidemics and outbreaks of
disease.
iii. Relationships: such states are also appraised in terms of the character of their
inter-state relationships and partnerships with the international community, earning
them the label of “difficult partners”.2

States that measure up poorly under the second and third dimensions are often described as
“poor performers”.

As Torres and Anderson point out, a common feature of most current definitions and
descriptions of fragile states is a preoccupation with state effectiveness and its absence, and
thus with the failure, or limited ability, of states to provide adequate public goods for their
citizens, including safety and security, economic management and basic social services.3

Underlying this fundamental weakness in state performance, it is suggested, are negative

readings in terms of two structural characteristics of a state able to fulfil its core functions. First,
following Max Weber’s classic definition of the state as “a political community” that exerts “a
monopoly of the legitimate use of physical force within a given territory”, it may be said that a
fragile state fails to meet the test, being unable to exercise effective authority over its sovereign
territory or to defend its borders. Secondly, a fragile state normally lacks adequate
administrative capacity, including personnel, skills and know-how, systems and infrastructure, to
provide the services required to enable it to carry out its core functions.4

Taking the “public goods” or “political goods” approach in considering fragile states focuses
attention on goals rather than means, and on state performance as well as the needs and
priorities of people.5 This is valuable in making the link between the analysis of the

1
For a broad discussion, see Diana Cammack, Dinah McLeod and Alvina Rocha Menocal, with Karin Christiansen,
“Donors and Fragile States: A Survey of Current Thinking and Practice”, Report produced by Overseas
Development Institute (ODI), London, for the Japan International Cooperation Agency (JICA), March 2006, pp. 16-
18.
2
On “difficult partners”, see OECD DAC, “Working for Development with Difficult Partners”, DCD/DAC (2002),
32, November 2002; and, Maguii Moreno Torres and Michael Anderson, “Fragile States: Defining Difficult
Environments for Poverty Reduction”, Poverty Reduction in Difficult Environments Team Policy Division (PRDE),
DFID, PRDE Working Paper 1, August 2004.
3
See Torres and Anderson, p.7.
4
Ibid.

3
characteristics, as well as the consequences, of state weakness or fragility, on the one hand,
and the areas of focus for effective international assistance, on the other.

As Robert Rotberg, one of the leading scholars on the topic of fragile states, notes, the primary
function of the state is to provide the political good of security, including prevention of cross-
border infiltration and the challenges of internal violence and war, as well as of direct threats to
personal and household security at local level. Effectively, as is apparent in all post-conflict, or
presumed post-conflict situations, the delivery of other priority political goods is only possible
once a reasonable measure of security is being provided and may be sustained.6

“Political goods” amount to the claims made by citizens on states. The level of demand and of
popular expectations varies greatly from state to state.7 As Rotberg explains, “political goods…
inform the political culture and, together, give content to the social contract …that is at the core
of regime/government and citizenry interactions.”8 In the case of many weak (though not
necessarily fragile) states, citizens are likely to have minimal expectations of the state to provide
services and solve problems. They may also view encounters with state officials, the courts, or
police, as potentially harmful rather than beneficial, and, hence, as something to be avoided. A
fragile or weak state may be more-or-less stable for long periods of time, although its capacity to
provide services to citizens may be minimal. Normally, it may be said that a weak state
becomes fragile and runs the risk of falling into a crisis condition when its ability to deliver even
a minimal level of services is threatened – thus breaking the unwritten “social contract” with its
population – but also when it proves to be incapable of mediating and accommodating conflicts
and disputes among factions.9

On behalf of USAID, the IRIS Center of the University of Maryland has developed a typology of
states, classified according to performance and state capacity.10 On the basis of its exhaustive
review and analysis of the professional and academic literatures, the IRIS team suggests that
definitions of fragile states must address the sources, rather than the outcomes, of state
weakness. What is proposed is an approach which focuses on what it is that a state fails to do.
Like Rotberg, the IRIS team emphasizes the centrality to a ranking and classifying of states of a
measurement of capacity to provide public goods, with particular attention to the ability of the
state to provide public security and maintain public order.11 Overall, IRIS concludes that a
definition of fragile states will take into account an assessment of “the degree of political will,
commitment to public goods provision, and the potential detrimental effects of social
heterogeneity (inequality of income and wealth among social groups), in the presence of weak
institutions of law and order.” Essentially, “failing” and “failed states” are viewed as extreme
5
For purposes of this report, “public” or “political goods” are defined as representing beneficial conditions for the
satisfaction of basic needs. They are “public” or “political” since they may only be realized through public,
collective action. For a discussion, see Ronald Manzer, Public Policies and Political Development in Canada.
Toronto: University of Toronto Press, 1985, p.6; also, J. Ronald Pennock, “Political Development, Political Systems
and Political Goods”, World Politics, Vol. 18, 1966, pp.420-426 and 433.
6
Robert Rotberg, “The Failure and Collapse of Nation-States: Breakdown, Prevention and Repair”, in Rotberg, Ed.,
When States Fail: Causes and Consequences. Princeton N.J.: Princeton University Press, 2004, pp.2-3.
7
For a Canadian perspective on “political goods”, see Ronald Manzer, Public Policies and Political Development in
Canada. 1985. Following Canadian political theorist, Christian Bay, and, like him, drawing on the thinking of
psychologist, Abraham Maslow, Manzer links political goods with a hierarchy of human needs.
8
See Rotberg, pp.2-3.
9
See John Heilbrunn, “Paying the Price of Failure: Reconstructing Failed and Collapsed States in Africa and Central
Asia”, Review Essay, Perspectives on Politics, Vol.4, 1, March 2006, (pp. 135-150), p.127.
10
“Proposed Typology in Order to Classify Countries Based on Performance and State Capacity”, IRIS Center and
USAID, not dated (estimated 2005).
11
Ibid, pp. 8-9.

4
cases, further along the continuum, of the same combination of characteristics.12 As Rotberg
argues, it is the presence of factional violence, sustained and widespread, which is
characteristic of a failed state, along with the fact that much of the violence is directed at the
state and its agents.13

There is no inevitability of the drift of a fragile state towards the condition of “failure”, or state
collapse. In Sri Lanka, despite the on-and-off civil war that has continued for more than twenty
years, for perhaps 80 per cent of Sri Lankans, even in some Tamil areas, the government has
performed reasonably well in terms of its ability to provide basic services. Indonesia provides a
further example of a state which suffers from considerable insecurity, yet which, in most of its
territory, is able to provide on a reliable basis a wide range of services to its citizens. Nepal
represents a contrary case, where the government’s diminished authority and capacity to assert
itself and maintain a credible presence across its territory, suggests that it has moved into the
zone of failure.14

Haiti is the poorest state in the western hemisphere, and has continued to exist under conditions
of crisis for many years, such that crisis has become normal. While the level of provision of
political goods by the state is at a minimum level, citizens are accustomed to receiving little. In
consequence of the absence of communal cleavages underlying inter-group violence, Haiti
remains extremely weak - but without failing as a political community.15 However, increasing
levels of criminal violence, along with the entrenchment of organized crime and the international
drugs trade, may threaten a worsening of even this rock-bottom, “steady state” condition.16

It is a combination of circumstances and the presence of one or more “triggering events” which
propels a stable state into a spiral of decline towards weakness, or a weak state towards failure.
However as Rotberg and other researchers emphasize, it is deficiencies in governance and in
approaches to decision-making, and often a deliberate decision to skew the benefits to be
obtained from political goods to serve the priorities of favoured elites and social groups, which
underlie state failure.17

Elaborating on its discussion of the character of fragile states, the IRIS team proposes the
following working definition:

Fragile states do not have political systems that resolve conflicts between various factions.
Institutions have lost much of their legitimacy and citizens no longer trust in the state’s ability to
maintain effective law and order. Public goods provision is inadequate. A negative shock, such
as a political assassination, may lead to complete state failure.18

12
Ibid.
13
See Rotberg, p.8.
14
See Ibid, p.15.
15
See Ibid, pp. 19-20.
16
See, for example, the several reports of the International Crisis Group on Haiti for 2006 and 2007; see also the
discussion of the country context in “Haiti: Failed Justice or the Rule of Law? Challenges Ahead for Haiti and the
International Community”, Report of the Inter-American Commission on Human Rights, Organization of American
States, Washington D.C., 2006.
17
See Rotberg, pp. 21-22.
18
See IRIS Center, pp. 26-27.

5
By contrast, the following definition of recovering states is put forward:

Recovering states have an increasing capacity to provide public goods and maintain law and
order. Political violence occurs less often (than in the case of failed states, where violence
permeates society) and more people resort to conflict resolution through the legal system.19

1.2 Strengthening Fragile States

As Rotberg reflects, with state failure and collapse, “the process of disintegration mutilates
institutions and destroys the underlying understandings between the government and the
governed”.20 Hence, support by the international community for recovery requires a sustained
effort in state building and capacity development over a period of many years. Such efforts
cannot be completed quickly, or in accordance with pre-set timelines, as the examples of Haiti,
East Timor, Kosovo and Bosnia-Herzegovina, will serve to demonstrate. Strong local leadership
and ownership will not emerge overnight and are unlikely to emerge at all in the absence of a
consultative and cooperative approach bringing together the international community, the
national government and, where practicable, civil society. Wherever possible, it will be desirable
to link international and local teams, and work through national government structures. It is
recognized that this will often be an excruciatingly difficult endeavour, requiring enormous
patience and forbearance on the part of international advisors and senior managers of
international organizations.21

A major foundation of recovery is the nurturing of social trust within and across communities, as
well as between citizens and their government. This requires working at both local and national
levels with local officials and community structures, formal and informal, to enhance human
security, build leadership capacity and improve delivery of basic services.22 In his study for the
World Bank on successful development in fragile states, political scientist, James Manor, also
emphasizes the importance of rebuilding trust.23 He notes that the governments of such states
often “preside over” large numbers of people who have been through the experience of extreme
hardship and insecurity, and who have become cynical about government. Manor asserts that,
somehow, in such countries, governments must begin to consult with, and respond to, ordinary
people – many of whom it does not trust. Doing so will be essential in order to engage energies
and minds with the tasks of reconstruction.24 As senior government officials learn that new
approaches enhance their credibility and legitimacy, they may become amenable to adopting
such methods on a broad front.25

19
See Ibid, p.27.
20
See Rotberg, p. 33.
21
On this subject, I am much indebted to Mr. Fernand Hivon, formerly a senior international advisor in Haiti, for his
willingness to reflect on his experiences (telephone interview, January 2007). The importance of this issue is also
discussed by David Lee in a recent detailed report on Haiti submitted to the Department of Foreign Affairs and
International Trade, “Security Sector and Justice Reform in Haiti: An Assessment of the Current State of Play”,
April 12, 2006.
22
See Jennifer Widner, “Building Effective Trust in the Aftermath of Severe Conflict”, in Robert Rotberg, Ed.,
When States Fail, pp. 222-236.
23
James Manor, Aid That Works: Successful Development in Fragile States. Washington, D.C.: World Bank, 2007.
24
See Ibid, p. 1.
25
See Ibid, p.3.

6
Building the developmental capacity of governments goes along with a need to change
established habits of thinking in government. Leaders and governments which lack authority
and have limited legitimacy are likely to be afraid of change and of reforms, which threaten to
dilute their powers. Behaviour following this line of thinking will undermine other efforts to
enhance social trust.

Efforts to strengthen rule of law are particularly relevant where building trust is concerned.
Progress in this sphere will give an assurance to citizens that there are institutions and
processes which will offer greater personal security, enable them to defend themselves against
threats, and enforce their rights. Similarly, drawing on survey research conducted in Uganda,
Zambia and Botswana, Jennifer Widner points to success in reducing the threat of crime and
insecurity, and strengthening rule of law, as a fundamental element of the process of reviving a
sense of optimism and trust.26 However, in building rule of law, as in other sectors, it will be
essential to engage local populations. A general finding of the research by the Bank,
summarized by Manor, is that programmes “promoting constructive interaction” among
government actors, civil society organizations (where these exist), and the local population, offer
unusual promise of results.27

The stance adopted by international organizations to supporting fragile states has not emerged
in a vacuum. As the authors of the ODI study of International Donors and the Fragile States
Agenda, cited above, reflect, the current preoccupations take their place in a broader evolution
of an agreed approach to meeting the challenge of supporting the Least Developed Countries.28
Reflections by donors on decades of, at best, intermittent success of international assistance
strategies, have led to the emergence of a general belief that the lack of results was due, in
large measure, to state weakness and the inability to provide an enabling environment in which
non-state actors could conduct their activities effectively. A new consensus has crystallized on
the urgency of a focus on poverty reduction, effective governance, transparency and
accountability, and the need for general budget support and aid harmonization. 29 However, as
yet, there is no conclusive evidence that new aid modalities are having a systemic impact on
development performance. This long-term struggle for developmental effectiveness in reducing
poverty and enhancing human security in the case of weak states provides the backdrop to
efforts to plan effective interventions in support of fragile states, where the pervasiveness of
conflict and the presence of immediate threats to human livelihoods, add to the array of
difficulties to be faced.

On the positive side, there has been growing recognition that the problems to be addressed in
securing improved performance are to be found on both sides of international partnerships:
weak and ineffective governance and an absence of commitment and political will on the part of
the “host” country, and weak, poorly coordinated, aid planning, delivery and monitoring, on the
donor side. Whether in Afghanistan, East Timor, Haiti, Sudan, or Kosovo, the international
community has been obliged to reflect on the adequacy of its response to the situation on the
ground. Hence, in thinking through the scoping, targeting and planning, of rule of law
interventions, it will be necessary to be hard-headed in facing up to the difficulties to be
confronted, while also taking into account some of the broad lessons which may be learned
from broader experience to date in delivering effective international support in fragile states.

26
See Widner, Op. Cit.
27
See Manor, p. 3.
28
See ODI, p. 21.
29
Ibid.

7
2.0 RULE OF LAW, FRAGILE STATES, AND
INTERNATIONAL ASSISTANCE
2.1 What is to be done? Re-Assessing and Focusing the Goals of
Rule of Law Assistance to Fragile States30
Rule of law (ROL) represents a critical component of the weaknesses in governance to be
addressed by the international community in providing support to fragile states. In recent years,
it has received increasing attention in UN peacekeeping efforts. Rule of law components have
been included in the missions for Kosovo, Timor Leste, Haiti, Liberia, Afghanistan, Cote d’Ivoire,
Burundi, the DRC and Sudan.31 In December 2006, the UN Secretary General published a
report on UN support for ROL, which served to further underscore the growing importance
attached to this aspect of work, in relation to post-conflict operations, in particular.32

As Kirsti Samuels points out, despite the growing emphasis on ROL in post-conflict countries,
there is little in the way of guidance on how to approach reform in the sector. Similarly, there
has been little attention to how the strategies adopted for work in developing countries more
generally may be adapted to the requirements of fragile states.33

In the absence of clear guidance, it will be as well to start with the basics. Given the weakness
of governance in fragile states, the prognosis for sustainability of institutional reforms, in the
short and medium term, at least, is likely to be poor. The institutional starting point is likely to be
at a substantially lower level than in the case of more stable states. In a post-conflict
environment, police and judicial structures may well have been completely demolished.

On the basis of a thorough review of studies and reports on the impact of ROL assistance in
post-conflict and fragile states, Kirsti Samuels, concludes that that performance to date has
been disappointing.34 Having considered the track record of international assistance for ROL
more generally, as well as in post-conflict situations, Professors Jane Stromreth of Georgetown
University Law Center, David Wippman (Cornell law School) and Rosa Brooks (Georgetown),
come to similar conclusions.35 Given the paucity of good news, it will be helpful to move back a
few steps in considering where to start in conceptualizing ROL reform programming frameworks
in fragile state environments.

30
The discussion of rule of law and development in this report has been informed by exposure to the work of
Stephen Toope, now President of UBC, with whom the author has had the good fortune to work on several
occasions. For an overview of Professor Toope’s thinking on ROL and the role of development assistance, see
“Legal and Judicial Reform through Development Assistance: Some Lessons”, McGill Law Journal, Vol. 48, 3,
September 2003, pp.357-417. The article is extremely relevant to the concerns discussed in this report. I have also
benefited greatly from the opportunity to discuss the issues considered in this report with my friend and colleague,
Veronique Lamontagne, and to draw on her experience in Haiti and Central and West Africa.
31
See Kirsti Samuels, “Rule of Law in Post-Conflict Countries: Operational Initiatives and Lessons Learnt”, World
Bank, Social Development Papers, Conflict Prevention and Reconstruction, Paper No. 37, October 2006, p.5.
32
See Enhancing Our Strengths: Enhancing our support for the Rule of Law, Report of the Secretary General,
General Assembly, Sixty-First Session, Agenda Item 80, A/61/636-S/2006/980, December 2006.
33
See Kirsty Samuels, p. 6.
34
See ibid, pp.15-16. A list of studies consulted by Samuels is provided under footnotes 23 and 24 of her report.
35
Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights? Building the Rule of Law after
Military Interventions. New York: Cambridge University Press, 2006, Chapter Three.

8
In addressing the needs of fragile states and their citizens, particularly in a post-conflict
situation, representatives of the international community are obliged to struggle with a critical
dilemma (one of many). On the one hand, there is felt to be an urgency to move quickly in
beginning the work of reconstruction and restoring public confidence in the state. On the other
hand, weak states often coexist with “strong societies” – as in the cases of Somalia, Sudan, or
Afghanistan.36 “Strong societies” are highly complex, often with dense social networks and
layers of informal structures, patterns of obligation, and deeply-held beliefs. These social
dynamics underpin a political culture which must be understood if efforts to strengthen
governance structures, processes and relationships are to be undertaken in such a way as to
nurture trust and popular ownership for reforms.

Effective interventions demand a careful and thorough “reading” of the social and cultural
context, along with a mapping of political interests and stakeholders, social groups and their
relationships. Also required is an identification of those elements, national, regional, or local,
most likely to be formidable opponents of rebuilding and reform efforts if their interests are not
recognized and/or accommodated in some way. The requirement for what is sometimes
termed a “political economy analysis” of the situation has been addressed to a degree through
the development of conflict analysis, frameworks for considering “conflict-sensitive
programming”, and, more broadly, by DFID in its “Drivers of Change” methodology.

Building ROL is often viewed as a technocratic process. This has led to a view that providing
support to institutional reform in this sphere is straightforward, and that it is an area of
international assistance where one may rapidly proceed to programme planning without the
need for initial contextual and institutional analysis. One of the attractions of work in this sector
in developing countries and countries in transition for international donors has been that it is
often perceived as being “above the fray” – doing governance and institution-building, without
the politics! In practice, working for ROL reform and strengthening institutions is far from
politically neutral. As in other areas of governance, reforms require a transformation in power
relations, with some local actors becoming empowered, while others lose power and privileged
access to valued resources.37

A helpful illustration of the consequences of failing to start with a careful political economy
analysis prior to developing programming plans is provided by Thomas Carothers, Vice-
President of the Carnegie Endowment for International Peace. Carothers has reviewed the less-
than-stellar results achieved by USAID, despite its usual, diligent, project-level work in the
sector, through two of its larger ROL programming investments, in Egypt and Russia. In both
cases, there was a failure to come to terms with the realities of power relations, where, in each
case, autocratic governments were unwilling to relax their grip on power to provide an opening
to facilitate establishing a “rule of law state”.38

One of the roots of the rather blinkered approach that has been characteristic of ROL thinking in
international assistance programmes is the tendency to conceptualize planning models in terms
of “what ROL looks like”, instead of “what it means”.39 Hence, a programme for ROL reform is
often translated into an institutional checklist, with the terms ROL and “judicial reform” often
36
The paradox of “Strong Societies and Weak States” was first explored by Joel S. Migdal in his classic study of the
same name (Princeton university Press, 1988).
37
See Can Might Make Rights, pp. 1-12 and 82-3; see also, discussion in “Rule of Law Tools for Post Conflict
States: Mapping the Justice Sector”, Office of the UN High Commissioner for Human Rights (UNHCHR), 2006,
pp.3-4.
38
See Thomas Carothers, “How Democracies Emerge: The Sequencing Fallacy”, Journal of Democracy, Vol. 18, 1,
January 2007, (pp. 12-27), pp. 16-18.

9
used interchangeably. Western legal systems and institutional structures are taken as the
model, and assistance programmes are designed to contribute to bridging the gap between
what exists and what is thought to be desirable.40

At the same time, realities on the ground do not always accord with such an approach with its
pre-set menu of problems to be addressed. Generally, as Carothers points out, there has been
far more attention to the judiciary and the courts than to law-making in the executive and
legislature. Where these concerns receive attention, this is usually through a programming
framework set apart from ROL programming, limiting possibilities for what the British call a
“joined-up” approach.

Some donors have begun to work on ROL from a broader security agenda perspective.41 This
has provided for closer links across work with the courts, prosecutors, police and prisons in the
criminal justice field. However, such an approach may still result in a menu of “stovepipe”
projects, and may be incomplete in failing to come to terms with the scope of what
encompasses “law” as experienced in the society. Law is a normative system, and, as such, is
supported by a political culture. In many countries, including most fragile states – for example,
Rwanda, Haiti, Afghanistan, Pakistan or Cambodia – courts play only a marginal role in the lives
of most citizens, and there is a reliance on other forms of dispute settlement, and often
alternative mechanisms for dealing with all but the most serious crimes.42

The importance of paying detailed attention to mechanisms for dealing with matters of “law’
outside the formal system is emphasized by Barnett Rubin in a major article on Afghanistan in
Foreign Affairs. Rubin notes that, even if all goes well with legal and judicial reform, it will take
many years to train prosecutors, judges, and defence lawyers. In the meantime, community
leaders and others complain that the courts are corrupt. In any case, in much of the country, for
the years required to implement reforms and build capacities, “the only alternatives before
Afghan society are enforcement of customary law (ed. with all its imperfections), or no law at
all.” Hence, it will be essential for the Afghan Government and the international community
supporting it to work to cooperate with these alternative systems and link them appropriately to
the formal system.43

As the Office of the UN High Commissioner for Human rights points out in a report on the
judiciary and the courts in a post-conflict setting:

39
A mea culpa should be entered at this point. The author acknowledges his own involvement in ROL planning
efforts which have unfolded in this fashion.
40
For a discussion of these issues, see Thomas Carothers, “Promoting the Rule of Law Abroad: A Problem of
Knowledge”, Carnegie Endowment, Rule of Law Series, No. 34, November 2003, p.8.
41
The Government of Canada’s initiative to introduce a “whole of government approach” to its international work
with fragile states represents a move in the same direction.
42
See, for example, the series of studies produced by the US Institute of Peace (USIP) on non-state justice
institutions in Afghanistan, including Thomas Barfield, Neomat Nojumi and Alexander Their, “The Clash of two
Goods: State and Non-State Dispute Resolution in Afghanistan”, USIP, 2006. More generally, on the importance of
coming to terms with parallel justice mechanisms, see Joe Stern, “Legal and Judicial Reform in the Context of Plural
Legal Systems: Key Issues and Challenges”, CIDA Asia Branch, Draft Study for Consultation and Discussion,
October 2005. On Haiti, see David Lee, “Security Sector and Justice Reform in Haiti”, p.19. Lee makes the point
that the importance of customary law in Haiti is not well-known among international donors.
43
See Barnett R. Rubin, “Saving Afghanistan”, Foreign Affairs, Vol. 86, 1, January/February 207, (pp. 57-78), p.
76. For a more detailed consideration of possibilities in linking the formal and informal systems of law in
Afghanistan, see “The Clash of Two goods”, cited in Footnote 38, above.

10
 Access to justice is often limited to the wealthy, the politically well-connected and the
urban dweller. In many post-conflict settings, the great majority of the population has
never had meaningful access to the courts. Instead, the judiciary is seen as a foreign
institution, using a language that ordinary people do not understand…Bringing the courts
to the people, especially marginalized groups…so that disputes are resolved quickly,
fairly and cheaply, will be a needed and revolutionary change. It will also ensure that
conflict does not reignite.44

Viewed from a “law and society” perspective, in Canada and other western countries, ROL is as
much about beliefs about accepted practices and popular compliance with legal norms as it is
with institutional structures. Perceptions of the fairness and legitimacy of laws are part of the
political culture and have as much to do with governance and the political processes they do
with the courts.

Accordingly, in considering the options for working in ROL in a particular country, it is not a
sound practice for the international community to begin with a list of formal institutions and to
consider how best to assist them. A broader approach is required, focusing on a “whole
system”, state and non-state, scan of actual practice and the experience of the population with
‘justice”.45 This will require a methodology which begins with a thorough assessment of how law
works in the country concerned, and/or, in the case of failed states, how it did work before the
precipitating crisis. Following an ends-based approach to ROL leads us to take the provision by
the state of the public good of security as the initial goal which will direct the work. An approach
which begins with a menu of formal institutions to be fixed is incompatible with this way of
working.46 Institutions are means, not ends in themselves.

As Kirsti Samuels points out, ROL reform efforts to date have been dominated by an emphasis
on “form” rather than “function”, with programmes focusing on: “institutional objectives and
formal legal structures without a nuanced understanding of the political and economic dynamics
that prevented such structures from existing in the first place, or the reality on the ground of how
disputes were settled, which often turned out to be based on informal mechanisms.”47 She goes
on to note that the assumption underpinning most ROL reform strategies – that ROL reform
should aim to reproduce the institutional frameworks that in the West are symbols and indicators
of strong rule of law – is neither effective nor justified.48 The preoccupation with formal
institutions has often resulted in “shell-like institutions, un-enforced and poorly understood
legislation, and judges and police with little commitment to the rights and values sought to be
entrenched through the reform”.49

All of this suggests the need for a strong dose of modesty in thinking about solutions to repair or
replace a damaged or destroyed system of law.50 A realistic assessment of both the current

44
UNHCHR, Op. Cit., pp.7-8.
45
On the necessity for a “total system” approach, see OECD DAC, Mainstreaming Conflict Prevention Series,
Issues Brief: “Equal Access to Justice and the Rule of Law”, 2005.
46
See Rachel Kleinfeld Belton, “Competing Definitions of Rule of Law: Implications for Practitioners”, Carnegie
Endowment, Rule of Law Series, No. 55, January 2005, p.6.
47
See Kirsti Samuels, “Rule of Law Reform in Post-Conflict Countries”, p.17.
48
See Kirsti Samuels, p. 18; also, Kleinfeld Belton; and, Carothers, “Promoting the Rule of Law Abroad”.
49
Kirsti Samuels, p. 18.
50
The need for donor modesty, realistic expectations, a long-term approach are among the lessons and best practices
on justice sector reform listed in the report on A Practitioners’ Roundtable on Building Justice in Fragile States,
DFAIT and Department of Justice, Ottawa, June 28-29, 2006. The report also emphasizes the fundamental
importance of understanding the local context and maintaining respect for local traditions.

11
situation and what existed before the crisis – and, sometimes, what existed at an even earlier
point – will be required as a starting point.51 Deciding what can be done requires an assessment
made on these lines, which looks at what is actually happening, and what did happen before,
and then compares these realities with the formal system. As Rubin suggests in the case of
Afghanistan, this may require acceptance of the need to recognize the importance of informal
practice, and acknowledgement that only incremental reforms can be made in the short term to
make for more fairness and efficiency and in beginning to align such practices with international
human rights norms.52

The imposition or introduction of new concepts and practices is likely to carry with it a process of
social change and a clash with current values and norms. Careful and patient work will be
required to work with “champions of change” to build both elite and popular understanding of,
and support for, such innovations. Further, in developing a strategy for implementing ROL
reforms, careful attention must be given to ensuring that timelines and priority-setting take into
account regularly-updated estimates of absorptive capacities.

The Need for a Broad ROL Assessment as a Beginning

A broad assessment of the ROL situation and context will include an objective appraisal of the
force field of interests within which ROL institutions and processes operate. For example, while
reconstruction and reform of a supreme court may be essential, it may make little sense to
devote resources to such an enterprise in cases where the executive undercuts its
independence, directly influences its decisions (“telephone justice”), and controls the
appointments process. Similarly, devoting substantial resources to training and education work
with the judiciary may well be an inappropriate move in the absence of a systematic vetting and
re-appointments process to remove the corrupt and incompetent. In Haiti, efforts to build up the
police force and maintain its operational effectiveness have been stymied by the incapacity of
the courts.53 Where the international community views ROL reform purely as a “technical “
matter, it is quite likely to ignore such concerns, and may be sending an unintended message to
an unreformed executive that it has freedom to continue to behave in an autocratic and/or
predatory way towards the public realm and its citizens.

Undoubtedly, under appropriate conditions, strengthening of the major formal ROL institutions
will form a core element of a support initiative, but it is likely to form only a part of a wider-
reaching strategy. Such a strategy would be developed on the basis of a broad-based field
assessment process which would address both the “supply side” of ROL provision and the
“demand side”, focusing on the needs and experience of ordinary citizens in the localities where
they reside. Since resources will be limited, and there will also be limits both to what can be
done and what can be absorbed within the near term, it will be important not to assume we
know in advance where to start.

Steps in Assessment and Strategy Development: A Two-Stage Process

Stage 1: Beginning with the need to come to terms with social and political realities rather than
working through an institutional check list also points us in the direction of considering what are
51
In Kosovo, a decision by the UN to reinstate the legal codes which prevailed prior to the conflict was rejected
absolutely by Kosovo’s Albanians, on the grounds that this amounted to reinstating “Serbian law”.
52
See Rubin, “Saving Afghanistan”; and, Kirsti Samuels, pp.19-20.
53
Personal telephone interview conducted with Fernand Hivon; also, see “Haiti: Justice Reform and the Security
Crisis”, International Crisis Group, Latin America and Caribbean Policy Briefing, No. 14, January 31, 2007.

12
the human resources required to do the job at the initial stage of assessment and strategy
development. What is needed at this time is a broad-based assessment team, including
those with expertise and experience in socio-political or political economy, and
institutional analysis, and an understanding of governance and development, as well as
a number of experienced legal generalists and specialists. It will also be essential to
work with national and international advisors with knowledge of local institutions and
local communities. The job to be undertaken will require many weeks in the field for at least
some team members and several weeks to perform the necessary analysis requires as a basis
for framing a strategy. Where possible, the exercise will be nationally-led, and the international
team will work with a “shadow team’ of nationals, or integrate well-qualified nationals into its
ranks, depending on circumstances.54

It may also be helpful for the team to collaborate with a regional organization with strong
credentials and local knowledge of the human rights and ROL fields, and/or with international
NGOs with on-the-ground experience. In some cases, additional team members of the team
would be sourced through such a body. In other case, it may be helpful for sub-contracts to be
arranged with such organizations to undertake preliminary field research and logistical work.

Judicial advisors would be members of the team. It must be emphasized that analytic
expertise, experience, personal qualities, willingness and proven ability to adopt a broad
perspective (i.e. not assuming that reform of the courts is necessarily the solution to all
problems), and duration of availability, will all be factors in considering team composition. If a
well-qualified advisor may be identified, but there are problems with duration of availability for
field work, the individual in question might perform the role of consulting regularly with the team,
rather than taking a lead role.

In thinking about how to do the work, it will be essential to bear in mind the need to guard
against the danger of a fixation on formal institutions. While the team will include individuals with
the detailed background to analyze in detail the work of the various key actors in the formal
system, others will focus on a broader understanding of the context, political and institutional
dynamics, and on “how the law works (or worked)”, as well as non-formal structures and
arrangements, and on both elite and public attitudes to law.

Stage 2: It is at a second stage, where the broad analysis has been done and short-and
medium-term priorities identified, when the time will be right for the entry of larger teams which
will specialize in working on initiatives in different sub-sectors. At this point, it will be helpful to
form an overall working group, including sub-sectoral representatives (i.e. for example, including
some, or all, of those dealing with: law-making; review and revision of legal codes; the judiciary
and judicial education; prosecution services; the defence bar; the police; corrections;
administration of criminal justice, the court process, sentencing and pre-trial detention, plea-
bargaining and witness protection; civil law and civil procedure; the role and functioning of
magistrates’ courts, or their equivalent; the current or customary role of the executive in
dispensing justice (i.e. through local or regional governors); development of the legal-judicial
professions; legal education; court administration; judgement enforcement; the role of notaries;
gender and ethnic equity within the legal-judicial sector; and legal outreach and community-
based law, customary and other parallel legal systems; modern ADR mechanisms; human
rights and gender equity, access to justice and the needs of vulnerable groups); and civics,
human rights and law in school curricula and non-formal education; legal and judicial
infrastructure).

54
See discussion in “Rule of Law Tools for Post Conflict States: Mapping the Justice Sector”, UNHCHR, 2006.

13
Once again, because of the likelihood of degeneration of an ROL strategy into “stovepipes” at
the implementation stage, it will be essential to provide for more than coordination, but for
overall leadership in ROL, with the mandate given to those responsible to act to ensure that all
programmes relate to one another and work together. Achieving ROL goals requires reform
across institutions, while a focus on institutional reforms alone results in a reform programme
emphasizing change within single institutions. Hence, under the latter approach, institutional
reform can go ahead – as it often does – without any significant impact on ROL ends, and
without producing any benefits for citizens.55

An emphasis in an ROL strategy and implementation plan on broad goals and outcomes,
focusing on the provision of public goods and results responding to social needs, with
monitoring and reporting conducted on this basis, will assist greatly in holding things together.
Programme results would also focus on collaboration in essential areas across initiatives. It will
remain essential at all stages to maintain a willingness to think beyond a formalistic, “legal
engineering” framework, and to adopt a broader, developmental perspective.56

Rachel Kleinfeld Belton puts forward five goals or ends as characteristic of ROL. Each of the
five is to be regarded as a public good in its own right. The five goals are:

 Government bound by law;

 Equality before the law;
 Law and order;
 Predictable and efficient justice;
 Recognition and protection of human rights.57

These five goals are similar to those encompassed in the definition of ROL proposed in the UN
Secretary General’s Report on Rule of Law (2004). The definition is as follows:

A principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly 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 application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness and procedural and legal
transparency.58

The inclusion of “law and order” as an ROL goal seems straightforward in the context of
consideration of the circumstances of a fragile or post-conflict state. However, typically, police
and prison reform has been managed apart from ROL programming. This partly results from the
existence of professional silos on the donor side, and perhaps because of a long-established
caution on the part of foreign ministries and international development agencies concerning
investments in police and prison reform. The police and prison services have often been viewed

55
See Kirsti Samuels, p.7.
56
See Carothers, “Promoting the Rule of Law Abroad”, p.13.
57
See Kleinfeld Belton, pp. 6-8.
58
“Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”, Report of the UN Secretary
General, S/2004/816, August 2004, paragraph 6.

14
in fragile states (and often quite correctly) as institutions immersed in systemic abuse of human
rights and as a direct agent of state repression. Yet, consideration of any one element at the
expense of others is likely to lead to the development of an unbalanced and ineffective system.

As Kleinfeld Belton observes, it is important to recognize that the rule of law goals set out above
do not automatically complement one another. Rather, they are in tension; while each requires
attention, a constant effort is also needed to ensure that they are mutually reinforcing, and not
contradictory.

Ensuring that government is itself bound by law necessitates strengthening the judiciary and the
legislature. Judicial independence will be essential. However, it may also be used as a “battle
cry” by a recalcitrant judiciary which is unwilling to reform itself and rid itself of corruption.
Accordingly, judicial independence must be accompanied by building professional associations,
adopting and enforcing codes of ethics and professional behaviour, and establishing transparent
mechanisms and procedures for self-policing and professional discipline by the judiciary as a
body. Benefits to be obtained from increasing the capacity of the lower courts will be negated by
the continuing operation of corrupt and/or incompetent courts of appeal.59 Similarly, enhancing
measures to defend human rights in a country where security is threatened by organized crime
or gang violence, without also investing heavily in law and order will be unhelpful and will only
serve to discredit human rights and those who advocate them. Hence, it will be important to
attempt to move forward cautiously on all fronts, monitoring and adjusting constantly, to ensure
that all five components support one another.60

As Kirsti Samuels points out, the collapse of the legal system and serious breakdown of law and
order in the post-conflict environment has encouraged crisis mode responses and ad hoc
project responses. Actions have often been taken by different international actors, acting with
little coordination, limited attention to priority-setting and little knowledge of the local context.
East Timor offers a striking, perhaps extreme, example of the unfolding of a piecemeal
approach which has produced unsustainable outcomes and a barely-functioning justice sector.61

In its discussion of lessons learned regarding rule of law work in relation to UN peacekeeping, in
east Timor and elsewhere, the Office of the UN High Commissioner for Human Rights
(UNHCHR) emphasizes the importance of a broad-based approach to reform, along with depth
of prior analysis, and the need to ensure that personnel in key institutions are vetted, as critical
elements of an ROL strategy. It is noted that the lessons of the need for a comprehensive
approach were take on board in the drafting of the Security Council Resolution establishing the
UN Stabilization Mission in Haiti (Resolution #1542, April 30, 2004). The mandate included all
key components of the work of transitional justice and ROL reform in a post-conflict
environment.62 Further, it is pointed out that the UN has come to recognize that ongoing
monitoring and assessment of police, prisons and courts is essential as a means to understand
the strengths and weaknesses of the justice system and to ensure that reform projects are built
on the basis of a thorough appreciation of actual practice.63
59
See Kirsti Samuels, “Rule of Law Reform in Post-Conflict Countries”, p. 16.
60
See Kleinfeld Belton, p. 24. A “comprehensive approach” is sometimes taken to mean a dribbling of support here,
there and everywhere, without attention to inter-relationships among institutions in the justice and security system.
This is very different from a “strategically integrated approach which builds on careful, preliminary diagnostic work.
For a discussion of the importance of strategic integration and coordination, see OECD DAC, “Equal Access to
Justice and the Rule of Law”, 2005, p.2.
61
See Kirsti Samuels, p. 16. Samuels also offers a succinct summary of the process of ROL reform in East Timor.
62
See UNHCHR, pp.1-2.
63
See Ibid.

15
Ongoing assessment is absolutely necessary as a check on the effectiveness of reforms. It may
well be the case, for example, that formal arrangements which, on paper, provide protection to
independence of the judiciary do not work in practice. In Sierra Leone, the constitution makes
provision for judges to be appointed by the executive, but with appointments subject to approval
by the legislature. However, in practice these safeguards to political influence over the
appointments process are undercut by executive domination of the legislature, an executive
practice of appointing judges on short-term contracts, a pattern of executive removal of judges
who go against the wishes of the executive, difficulties of recruitment as a result of poor pay and
working conditions, and the poor public image of the judiciary.64

In many countries in transition where criminal justice reforms have been undertaken, far more
attention has been given to judges than to police, prosecutors or prison reform, or to judgement
enforcement. Often, police, along with judges and prosecutors, have been trained extensively in
human rights. However, to do so without simultaneously addressing broader requirements for
institutional modernization and professional development is unlikely to achieve concrete results.
Such approaches will do little to enhance the effectiveness of the state in providing law and
order.

Treating ROL as a single goal, rather than as a system of goals potentially in tension, may result
in international assistance programmes having unintended effects. The most probable result of
a technocratic, institutional approach in the context of an unreformed government, lacking the
will to bind itself to follow ROL principles, will be a strengthening of the executive and the
Ministry of Justice, with the courts becoming a more effective instrument for the enforcement of
its priorities, rather than acting as a restraint on the unrestrained exercise of power.65 Even
where the government’s disposition may be more-or-less benign, efforts to shore up the
executive, without sufficient attention to the judiciary, can produce unintended consequences. In
the case of Haiti, it has been pointed out that;

In many sectors, one quite properly works with the administration (as well as, often,
NGOs and others). In justice, there are two constitutional actors, but the one (the
judiciary) is extremely weak and is in practice dominated by the executive (Justice
Ministry in particular, as well as the Presidency and the Prime Minister’s Office (the
“Primature”). Planning and programming only or mainly with the administration, the
“normal” avenue, serves to prolong and worsen this dependence. Yet at present when
one turns to the judiciary, there is effectively no “there” there, with which to work.66

The distinction between “rule of law” and “rule by law”, often made with reference to China, but
applicable in many other states, in Asia and elsewhere, effectively makes the point.

A major review of US Aid’s ROL assistance in six Latin American and Asian countries
concluded its assessment by counselling against “a legal system strengthening or institution
building strategy”, except where a number of facilitating factors are in place. These include: an
64
See Can Might Make Rights, pp.230-231.
65
While it is hardly reasonable to think of the executive in Afghanistan at this point as overly strong, nevertheless,
concerns have been raised with regard to the early efforts to strengthen ROL of unbalanced executive dominance
and a tame, unreformed judiciary. See Lawrence Miller and Robert Pento, “Establishing the Rule of Law in
Afghanistan”, USIP, Special Report No. 117, March 2004. The swearing in of a new Supreme Court in August
2006 is an important first step in opening the way to fundamental reform, but it will be some time before it is
apparent whether or not this is an opening to real change.
66
David Lee, “Security Sector and Justice Reform in Haiti”, p. 19.

16
absence of rampant corruption in the justice system; overcoming the disregard by government
of human rights abuses in society; and, evidence of political will to reform on the part of the
government.67 Similar observations are made by Pilar Domingo in her review of the politics of
judicial reform in Latin America.68 The World Bank’s work on corruption and “state capture” by
private interests in the transition process also alerts us to the futility of promoting institutional
reforms in ROL without addressing more fundamental issues of the dynamics of power and
accountability.69

2.2 Devising and Implementing ROL Strategies for Fragile States:

An Opening for a Canadian Initiative?
In developing this document, the author was asked to work towards some preliminary
recommendations on possible Canadian initiatives, particularly involving judges, through which
Canada might make a distinctive and valued contribution to international work with fragile
states. As the foregoing discussion may suggest, an enormous challenge for the international
community is how to begin on the work of rebuilding or strengthening core capacities for
delivery of public goods. Often, what takes place is haphazard and uncoordinated, because of
the difficulties for international donors, all of whom work under different systems, budgeting
arrangements and timetables, as well of the enormous challenge of working with weak,
ineffective and beleaguered host government ministries and legal systems. If Canada were able
to put in place at relatively short notice a broad-based team, capable of undertaking the analytic
and planning work required to make an assessment of the overall system and work with national
counterparts to devise an ROL strategy, while also expressing willingness to contribute to
implementation, this would represent a considerable achievement.

Planning has become more difficult under complex conditions of “cascades” of change, political,
economic and social turbulence and the constant possibility in international affairs of unforeseen
factors appearing “from left field”.70 However, plans and strategies remain essential. What has
become more important in adapting to changed conditions is to work on short-term and medium
term plans, while being guided by longer-term goals and aiming at mapping out realistic paths,
and identifying benchmarks of incremental progress towards them. Equally important is to
monitor and adjust regularly and to constantly re-assess risks external and internal to the
system (in this case ROL and the five specific goals, or public goods, which constitute it, as
listed on Page 12, above), as well as new opportunities and possibilities. It will also be
necessary to develop appropriate mitigation strategies for risks, and adjust operational plans to
take advantage of new openings.

67
Harry Blair and Gary Hansen, “Weighing in on the Scales of Justice: Strengthening Approaches to donor-
supported Rule of Law Programs”, USAID, February 1994, as quoted by Stephen Golub, “Beyond the Rule of Law
Orthodoxy: The Legal Empowerment Alternative”, Carnegie Endowment, Rule of Law Series, No. 41, October
2003, p. 12.
68
Pilar Domingo, “Judicial Independence and Judicial Reform in Latin America”, in Andreas Schedler, Larry
Diamond and Marc F. Plattner, Eds., The Self-Restraining State: Power and Accountability in New Democracies.
Boulder: Lynne Rienner Publishers, 1999, pp. 151-176.
69
See Anti-Corruption in the Transition: a Contribution to the Policy Debate. Washington, D.C.: World Bank, 2000.
70
On the growing uncertainties of world politics, see James Rosenau, Turbulence in World Politics: a Theory of
Change and Continuity. Princeton, N.J.: Princeton University Press, 1990; and, Robert Cooper, The Breaking of
Nations: Order and Chaos in the Twenty-First Century. London: Grove Atlantic Books, 2003, and Toronto,
McClelland and Stewart, 2005.

17
An ROL strategy for fragile states will be designed on the basis of the particularities of the local
context and a reading of local possibilities. It will take a realistic view of what needs to be done
and what can be done (“the art of the possible”). It will be guided by principles of what political
scientist Merilee Grindle of Harvard’s Kennedy School of Government has termed “Good
Enough Governance”.71 This perspective, which has been adopted by the UK’s Department for
International Development (DFID) as a guideline in its policy and programming, emphasizes that
there is little purpose in setting goals and benchmarks which presumes that “Country X” can
achieve international standards in good governance, whether in public administration,
legislative-executive relations, or ROL within the foreseeable future.

The reform agenda for any fragile state will be a lengthy one, and one that state structures and
government leadership will be ill-equipped to cope with. As Grindle observes, the countries
which most urgently require a restructuring of governance are those least equipped to manage
the process. For this reason, the task of working with national leadership and “change agents”,
where these may be identified, to devise and design an ROL strategy will be a challenging one.
However, except in the most extreme circumstances in a post-conflict environment, it will be
essential to operate on this basis. To do otherwise is to risk the prospect of having what may be
an excellent, well-conceived strategy rejected as a “Canadian” or “foreign” plan, from which
national counterparts will distance themselves, and which will, thus, be impossible to
implement.72

Bearing these concerns in mind, it must be acknowledged that building ROL in fragile states will
be a long-term process of broad-based capacity development, with many setbacks along the
road. In this context, a very simple definition of “capacity” will be most relevant: “the overall
ability of a system to perform its core functions and to provide essential public goods”.73 As
discussed above, a strategy is best built on the basis of a “total system” approach, taking in both
formal and non-formal sectors, and adopting a cross-institutional perspective, focusing on
overall ROL goals and provision of public goods, and not merely on establishing or
reconstructing formal institutions. Realistically, the target date for goal achievement is likely to
be some time in the future, probably some decades away. What will be important will be to
recognize that ‘quick fixes” will not work, and that careful, patient work will be required. For the
foreseeable future, stimulating movement in the desired direction and achieving modest,
incremental, results on a flexible timetable, but maintaining the path towards more ambitious
goals, is likely to be the most positive scenario which can be entertained.74

An emphasis on overall system performance and balance will characterize both short-term and
longer-term goals. While much of the work required to implement the strategy will take place
71
Merilee Grindle, “Good Enough Governance: Poverty reduction and Reform in Developing Countries”, World
Bank Poverty Reduction Group, November 2002.
72
The author has witnessed such a development on more than one occasion. The importance of this approach, while,
at the same time, recognizing the great difficulty of putting it into practice was raised in interviews for this project
conducted by the author with Fernand Hivon and Veronique Lamontagne.
73
Definition developed by the author, drawing on the work of Peter Morgan. On capacity development more
generally, see UNDP, “Capacity Development”, Bureau for Policy Development, Technical Advisory Paper 2, 1997.
For capacity development at the level of individual institutions, see Charles Lusthaus, Gary Anderson and Elaine
Murphy, Institutional Assessment: a Framework for Strengthening Organizational Capacity. Ottawa: IDRC, 1995;
and, Charles Lusthaus, Marie-Helene Adrien, Gary Anderson, and Fred Carden, Enhancing Organizational
performance: a Toolbox for Self-Assessment. Ottawa, IDRC, 1999.
74
One issue that has not been addressed in this report is Transitional Justice. The decision on whether or not to
develop a process and mechanisms for transitional justice would be beyond the scope of responsibility of an ROL
team, as described here. Should a decision be made to move ahead in this sphere, it would be necessary to carefully
coordinate plans for overall ROL work, to be summed up in the ROL strategy, with those for transitional justice.

18
within sub-sectors and institutions, reference to overall system and sub-system (i.e. criminal
justice) performance, rather than taking the institution (i.e. the prosecution services, or prisons)
as the unit of analysis, will require a cross-sector, or cross-institution approach to working for
incremental improvements.

The precise role and depth of involvement of international ROL teams will vary, depending on
the circumstances of the country concerned and the mandate for international engagement. It
will be of critical importance, however, for donor states wishing to take a lead role in ROL
reconstruction and reform to be to be prepared to make a substantial, front-end investment in
assessment and diagnosis, mapping and strategy preparation.

Change does not unfold as entirely as expected, and not always in linear fashion. In monitoring
and measuring change on a short-term basis, it will be important to give attention to progress in
improving learning and adaptability, team work, enhanced work processes, strengthened
commitment and cross-institutional cooperation. This requires “process indicators” that attempt
to capture achievements not always visible, but which, nevertheless, are factors in the building
of capacity and moving towards effective delivery of the essential public goods which constitute
the ROL goals. It is important to bear in mind a point raised in the earlier sections of the report:
the importance of building trust. This is also a critical concern for international assistance teams
working in fragile states. Monitoring is often viewed as a tool for accountability and ensuring that
donor funds are used for designated purposes. Using monitoring primarily for such a purpose
will undermine trust. It will be more helpful to think of monitoring primarily as a tool for mutual
learning and as a source of information and feedback, on which to base decisions on necessary
adjustments to plans.75 A clear distinction should be made between monitoring and auditing,
with monitors defined as supporters of effective implementation and not “spies”, employed by
the international community.

As discussed briefly above (see The Need for a Broad ROL Assessment as a Beginning, p. 10-
12) what will be required to undertake the necessary work of analysis and diagnostics and
strategy development will be a team with a strong and clear mandate, well-prepared to base
their assessment on an appreciation of the local realities which will confront team members, and
capable of producing both realistic strategies and manageable implementation plans.
Particularly at the stage of preliminary documentation and diagnostic work and strategy design,
it will be essential that the team works as a team with common goals, rather than as a group of
professionals, each with distinct responsibilities and working alone.

An analogy may help to explain what is necessary if an ROL assessment and strategy team is
to avoid the “institutional trap”, and to maintain a whole-systems view at all times. In a film or
television production team, work is carried out by a group of highly-trained specialists, but the
effectiveness of each member of the team depends on the contribution of the others. Each
individual must work to the same script and plan, and accept the guidance and authority of the
director. Each team member may put forward new ideas and suggestions, and creativity will be
encouraged, but innovations must be discussed and accepted by the group and endorsed by
the director before being adopted. An approach along these lines will be required for the ROL
team to be effective. Each team member will have customized terms of reference (TORs) and
specific responsibilities, but each will also be required to sign off on a set of TORs and
guidelines for the modus operandi of the team as a whole.

75
For a discussion of a “systems” perspective on monitoring and evaluation, see Peter Morgan, “The Idea and
Practice of Systems Thinking and Their Relevance for Capacity Development”, European Centre for Development
Policy Management (ECDPM), March 2005, pp. 23-24.

19
3.0 HOW AND WHERE TO INVOLVE CANADIAN
JUDGES: ACONSIDERATION OF OPTIONS AND
METHODS FOR JUDICIAL ENGAGEMENT
3.1 Judges as Members of the Broad Assessment Team (Phases)
For DFAIT, what will be necessary will be to facilitate the mobilization of a broad-based
assessment team of advisors, perhaps with the cooperation of international NGOs and/or
regional (international) organizations, to do all the necessary work leading up to and including
the development of a wide-ranging strategy. As suggested above, at a second stage, there will
be a requirement for a larger team, with sub-groups capable of doing more detailed work within
and across institutional and sub-sector boundaries, as input to the preparation of an
implementation plan, including sequencing. It should be the initial assessment group which will
prepare the plan, taking into account the detailed studies compiled by the second-stage team.
Further, the work of teams at both stages will be directed and guided by the same director and
associate directors, charged with overall responsibility for the ROL sector.

In order to make this possible, a number of preliminary steps will be necessary. These will
include:

 Developing a short concept paper for discussion within DFAIT, CIDA, the Department of
Justice, and elsewhere in government, as may be necessary.

 Undertaking a “feasibility study” of the initiative through consultations in Canada, with the
UN, and with other international partners. This exercise would be conducted by a
DFAIT team supported working with consultants. The objective would be to assess the
acceptability of the proposal, to identify issues to be addressed in proceeding further,
and to assess in a general way the probable level of demand for services to be made
available.

 Preparation of a detailed operations manual to guide the work at all stages:

- Guidelines on team composition and variations, depending on context and

circumstances;
- Development of team and individual terms of reference for stages 1 and 2;
- Generic guidelines on the assessment and data collection process and on
strategy development and on modes of cooperation with the host national
government, national counterparts, and, where relevant, the international
organization with the overall mandate to provide international assistance.
- Guidelines on the implementation plan and its elements;
- Model contracts for team members.
- Establishment of an ROL/Fragile States Consultative Group.
- Recruitment on a consultancy basis, or through secondment, of perhaps two
senior individuals (with more junior support staff) with broad capabilities to
undertake detailed planning and design work on the establishment of the
mechanism and to undertake preparatory work for major field operations.

20
 Drawing for inspiration on the existing arrangement with the RCMP, development of
“standing arrangements” and MOUs with relevant bodies in Canada covering the entire field
of rule of law, bearing in mind the need to take a “total system” approach, including the non-
formal, as well as formal, elements of ‘law”, taking in the role of the legislature and executive
in law-making, and the need to deal with the “demand” side (citizens, social groups, and
vulnerable populations; legal advocacy; access to justice, etc.), as well as the “supply” side
of institutions and prevailing arrangements. NJI would be one such organization, as would
be the Departments of Justice, Corrections Canada and the RCMP, as well as the Law
Societies and the CBA.

It will also be necessary to develop relationships with NGOs and other bodies, including
legal aid societies, to address access to justice issues. Further, it will be essential for DFAIT
to develop a roster of consultants and academics, capable of dealing with the broader,
contextual issues discussed above. It will also be useful, through NJI and the Department of
Justice, among others, to explore the possibilities of accessing provincial expertise and how
to institutionalize such arrangements.

It will be essential at an early stage to address the financial implications of such an

undertaking. It may be necessary to arrange for secondments of a small group of
individuals from key ROL organizations to START or to consider other mechanisms which
would also ensure the availability of qualified personnel. For consultants and academics, it
will be necessary for START to develop “standing offer” arrangements with a short list of
qualified individuals.

 Developing guidelines for all participating organizations on screening, selection and

briefing of personnel who may be short-listed for assignments. One of the limiting factors will
be availability. Only those who will be available for several weeks at a time will be eligible for
inclusion in rosters.

Involvement of Judges

Judges may be involved, potentially, as both generalists and specialists, during stages 1
and 2 of the assessment, strategy development and implementation planning work. Like
others, they will be subject to a stringent selection process through which to be placed on a
short list, or roster. NJI would be responsible for negotiating an arrangement with DFAIT for
its mandate and financial support in relation to the selection, briefing and provision of judges
to participate as members of DFAIT “Fragile States” ROL Teams. It will be advisable to
maintain two rosters: one including judges capable of, and interested in, taking a broader
ROL role at stage 1, while also taking particular responsibility for focusing on aspects of the
work with a focus on the judiciary, judicial education and the courts. Judges who are
particularly knowledgeable, for example, on legal education, access to justice, juvenile
justice, ADR, gender equity in the justice system, criminal justice, human rights and the
protection of minorities, or the relationship between formal and non-formal systems, would
be in a position to make a strong contribution.

A second list would include judges who are able to contribute most effectively to matters
pertaining to the courts and judiciary. It should be noted that non-judges –for example, court

21
 administration and information specialists- will also be required as participants.76 Topics of
examination will include, for example,: the judiciary and judicial governance and oversight;
judicial education, professional development, and the judicial career; professional
association development; court management and administration; information and
communication systems and the judiciary; case management and case allocation
procedures; the court registry and preparation and maintenance of case files and court
dockets; recording of judgements and other record-keeping, the court process and
procedure, civil and criminal, and ADR; registration; judgement enforcement
communications with “clients of the courts”; access to the courts and public information on
the courts; the role and functioning of magistrates’ courts, or their equivalent.

Judges would also participate as members of teams dealing, on a broad basis, with such
matters as: criminal justice; juvenile justice; the role of, and strengthening of the defence
bar; civil justice; property and land-ownership law reform and registration procedures (often
critical in post-conflict states); and executive-judicial-legislative relations and issues of
judicial independence. The latter area would include consideration of: judicial appointments
and length of tenure; and protection against executive interference on a broad basis and in
individual cases; the autonomy of individual judges; the role of the court president or chief
judge of a court; judicial pay and conditions; bench books and access to current codes and
legislation and higher court judgments; the handling of complaints against judges; and,
judicial discipline. 77

At the implementation stage, depending on Canada’s interest in participating, there would

be further opportunities for judicial involvement. However, the role of Canadian or other
international judges – except as potential participants in transitional justice tribunals – would
be an indirect one, operating as advisors, mentors and monitors (in the sense discussed
above), rather than in direct delivery. One avenue to be explored, which might be of
particular interest to CIDA, would be cooperation with regional institutions and third
countries in the region concerned, to build long-term capacity in the region, particularly for
education and training, and for follow-up through on-site “coaching” ad trouble-shooting.78
A further possibility, which was also discussed on several occasions during the series of
interviews held for the project, including the one noted above, was that of Canadian judges
provided support through what might be termed “professional accompaniment” or
“professional solidarity”. This would involve establishing a working relationship between
Canadian judges, through NJI, and the judiciary of a partner country. Once again, a third
country from the region in which the partner country is located might also be involved. The
development of trust through regular exchanges of ideas and experience, delivered on a
collegial basis, judge to judge, in the context of a judicial education or professional development
programme, an including professional visits and attachments in each direction, would assist in
the building of the self-confidence of the national judiciary, and provide a possible basis for
more ambitious programmes in the future.
76
It is suggested that NJI make an arrangement with the Federal commissioner’s Office, and, if required, other
organizations, to access the full range of skills necessary. Alternatively, NJI would narrow its mandate and court
administration and related matters would be managed directly y the Commissioner’s office.
77
Partial listings of topics may be found in: “Mapping the Justice Sector”, UNHCHR; Kirsti Samuels, “Rule of Law
reform in Post-Conflict States”, and Stephen Toope, “Legal and Judicial Reform through Development Assistance”,
McGill Law Journal; United Nations Department of Peacekeeping Operations, Primer for Justice Components in
Multidimensional Peace Operations: Strengthening the Rule of Law, December 2006.
78
The idea was discussed at some length in a meeting at CIDA in January 2007, involving the author and Lisa Joly
from NJI, with Julian Murray, Sue Steffan and Amber Apse, all from the Central Africa and Great Lakes Region
Programme, and consultant, Joe Stern.

22
Results in the short term would be hard to measure, but, over time, and under the right
conditions, such programming would have a place. A negative view concerning such initiatives
prevails in much of the international community, but the positive effects of such efforts are easily
overlooked, and the importance of the building of trust and professional self-confidence are
often overlooked.

Such programmes should only be contemplated once basic structures are in place and where
the national judiciary has the capacity and motivation to participate actively as partners, rather
than as passive receivers of knowledge.

3.2 Beyond Assessment: A Check List of Potential Roles in

Implementation of ROL Reform in Fragile States which may be
Performed by Canadian Judges
At the outset, it should be noted that there is little documentation on the topic, except with
reference to the place of international judges, prosecutors and defence counsel, in relation to
international or hybrid tribunals in a transitional justice context. In preparing the checklist, the
author makes no claims for either originality or completeness of coverage. The listing which
follows draws on the preceding discussion, on the author’s experience and review of judicial
reform programmes, and on two additional documents, which do provide a starting point for
compiling a check list. Both are used extensively. They are:

 United Nations Primer for Justice Components in Multidimensional Peace

Operations: Strengthening the Rule of Law79;

 Linn Hammergen (Banque mondiale), « Diagnosing Judicial Performance: Toward a

Tool to help guide Judicial Reform Programs », rédigé pour Transparency
International, 2002.

Readers are also referred to the American Bar Association’s Judicial Reform Index
(http://www.abanet.org/ceeli/publications/jri/home.html).

The focus in the list which follows is not complete. As noted in 3.1, above, there are also
opportunities for judges to be involved as members of multi-disciplinary teams on broader
topics, where a judicial perspective would be valuable.

A) Transitional Justice

i. Senior Judicial Advisors: The design and development of

International or Hybrid tribunals as a means to address a legacy of
impunity and the breakdown of the criminal justice system. Such courts
promote justice, accountability and impartiality in line with international
legal and human rights standards, and can be particularly valuable (as
in Kosovo, Bosnia-Herzegovina, or Sierra Leone) in addressing the
most serious crimes in a post-conflict setting. Ideally, the idea of such
79
See United Nations Primer for Justice Components in Multidimensional Peace Operations: Strengthening the Rule
of Law. United Nations: Department of Peacekeeping Operations, December 2006.

23
 mechanisms is that they also are used deliberately to nurture domestic
capabilities, facilitating a withdrawal of international staff over a period
of time.80

ii. International Judges as Member of Such Tribunals. In light of the

closing comment on (i), above, the international judge should also be
prepared to act in a mentoring/collegial training capacity.

iii. Judicial Advisors in development of “Truth Commissions”, acting

as leading members of teams guiding the design of a structure and
process and preparation of operational procedures and staffing plans
for such bodies.81

iv. Judicial Advisors, as members of a team, on the Development of

Emergency Mobile Courts, and on the training required for the judges
and support staff who will operate these mechanisms.

v. Senior Judicial Advisor, design of Vetting Procedures for

Judiciary, and/or Member of Independent Commission to conduct
the vetting Process. As a basic step in judicial reform in a fragile state
setting, it may well be necessary to take systematic action to ensure
that judges are committed to ROL principles and practices, and at least
potentially capable of putting then into effect. This will require
establishment of a temporary independent commission, following due
process and complete transparency, to vet all sitting judges and/or
candidates for judicial positions. International judges may be involved in
the design of the procedure, and also as members and/or chairs of the
commission.82

vi. Senior Judicial Advisors to Support Judicial Self-Governance, as

International Members (for a fixed term) of, or Advisors to Higher
Judicial or Judicial-Prosecutorial Councils.

B. Broader ROL Functions and Activities

B1. Senior Advisors to ROL Reform Teams or Major Projects during implementation of an
ROL Strategy, providing guidance with particular reference to:

i. Judicial Independence, Judicial Powers and Judicial Professionalism, working with

constitutional lawyers. Provision of guidance on:

- Strengthening legal guarantees of judicial independence;

- Formalizing a strong judicial capacity to address issues relating to separation
of powers;

80
Based on author’s discussions with international judges, prosecutors and advisors in Sarajevo in recent years.
81
See Office of the United Nations High Commissioner for Human Rights (OHCHR), Rule-of-Law Tools for Post-
Conflict States, Truth Commissions, 2006.
82
On the concept and practice of vetting, see Office of the United Nations High Commissioner for Human Rights
(OHCHR), Rule-of-Law Tools for Post-Conflict States, Vetting: An Operational Framework, 2006.

24
 - Reviewing and strengthening institutional control over administration and
budget functions do not overrule or ignore judicial decisions, and how to
provide for legal action in such cases;
- Ensuring that decisions and powers accorded to the judiciary are not usurped
by other government bodies;
- Ensuring that the judiciary is able to set its own rules for internal operations
and that where those rules are limited by enacted law, they have substantial
input into the shaping of the relevant laws.
- Ensuring that the oversight of the internal administration of the courts
responds to judicial needs, and not the agenda of the administration.83

ii. Matters Pertaining to the Judicial Career, Security of Tenure and Independence

- Rules, procedures and guidelines for judicial qualification, selection in

accordance with fair and transparent criteria, appointment and promotion,
ensuring that evaluation is handled by a separate body from that making the
final selection;
- Provisions for judicial tenure, discipline and removal;
- Development of a code of judicial ethics and professional conduct;
- Handling of complaints about judicial conduct and performance;
- The availability of training programs and facilitation of participation;
- Development of professional associations of judges.

iii. Issues Relating to the Judicial Process84; ensuring that:

 Procedures for handling cases are standardized and mechanisms exist for ensuring
they are followed;
 Rules of evidence and standards for evaluating arguments exist and are applied in
predictable fashion;
 Assignment of cases follows standardized procedures and results in a reasonably
equitable distribution of work;
 Procedures are reasonably efficient and designed and reformulated in the
interests of eliminating unnecessary steps and bottlenecks;
 Judges have the power to move cases ahead and to punish or deny efforts to
create additional delays;
 Where judicial decisions are not complied with, courts have additional means
to enforce them;
 There is a regularized process for appealing judicial decisions, and decision
are not reversed in any other fashion;
 The pre-trial settlement of disputes is encouraged but not forced;
 There exist duly recognized alternative dispute resolution mechanisms, both
court-annexed and free standing, which provide a viable alternative to judicial
processes.

B2. Judicial Mentors

83
See Hammergren, pp. 19-23.
84
This section is reproduced from Hammergren, p.20.

25
Canadian judges may be called upon to act as Judicial Mentors, working with newly-appointed
or returning members of the judiciary. Canadian judges, acting as mentors, might also be
assigned to specific districts or to a higher court to work with the judiciary of the designated
court(s) for a specified period or on a non-continuous, but regular, basis over a longer time.

B3. Judicial Education and Professional Development Advisors85

Judicial Education Advisors will be required for:

 Leadership in planning and design of the curriculum, and associated consultations and
needs assessment processes (with a larger team), both for inception training for new
judges, and for continuing, professional education and professional development;
 Training of trainers for judicial education;
 Collaborative course and teaching module development;
 Development of plans for long-term institutional provision for judicial education and
training.

85
It should be noted that in fragile or post-conflict states, legal and judicial education may have largely focused on
memorization of statutes and legal principles, and, for judges, on occasion, on the content of new laws. There will
have been little attention to the practical application of law and little or none to court process and procedure.
Therefore, curriculum design will involve the introduction of new concepts, new learning objectives, and,
presumably, new teaching methodologies. See UN “Primer for Justice Components in Multidimensional
Peacekeeping Operations”, p.30.

26
 APPENDIX A
List of Those Consulted for the Review

Salim Fakirani, Counsel,

Justice Reconstruction Group, International Legal Programs, Department of Justice Canada

Fernand Hivon, former Senior International Advisor in Haiti

Veronique Lamontagne, Consultant

Legal Reform, Human Rights and International Development

Claire L’Heureux-Dubé, former Justice

Supreme Court of Canada

William Loris, Director General

International Development Law Organization

David Marshall, Human Rights Officer,

United Nations, High Commissioner for Human Rights

Sandra Oxner, President

Commonwealth Judicial Education Institute

Canadian International Development Agency (CIDA)

Amber Apse, Development Officer
Central Africa and Great Lakes Program, Africa Branch

Nipa Banarjee, Director, Info and Business Solutions

Former Head of Aid in Kabul, Afghanistan

Clément Bélanger, Senior Development Officer

Haiti, Cuba, and Dominican Republic, Americas Branch

Peggy Florida, Senior Development Officer

Afghanistan Division, Asia Branch

Yannick Hingorani, Senior Development Officer

Afghanistan Division, Asia Branch

Flora Liebich, Senior Governance Specialist

Social Sciences, Asia Branch

John Lobsinger, Senior Governance Analyst and Deputy Director

Democratic Institutions and Conflicts

27
Julian Murray, Regional Program Director
Central Africa and Great Lakes Program, Africa Branch

Steven Rayfield, Senior Development Officer

Afghanistan Division, Asia Branch

Susan Steffen, Program Director

Rwanda-D.R. Congo-Burundi, Central Africa, and Great Lakes Program, Africa Branch

Joseph Stern, Consultant

Louis Verret, Director

Haiti, Cuba, and Dominican Republic, Americas Branch

Department of Foreign Affairs and International Trade (DFAIT)

Shawn Barber, Director
Conflict Prevention and Peacebuilding Group, Stabilization and Reconstruction Task Force

Deena El-Sawy, Policy Analyst

Conflict Prevention and Peacebuilding Group, Stabilization and Reconstruction Task Force

Boris Jacouty, Program Advisor

Conflict Prevention and Peacebuilding Group, Stabilization and Reconstruction Task Force

Ferry de Kerckhove, Director General

International Organizations Bureau

28