Rule of Law in Post-Conflict State-Building

The rule of law has been hailed as a panacea for developing and transition countries. Despite the fact that it has now been almost a decade since Carothers (1998, p. 95) wrote ‘[…] one cannot go through a foreign policy debate without someone proposing the rule of law as the solution to the world's troubles’ there are no signs of a rule of law fatigue.

On the contrary, as some commentators recently stated, rule of law ‘is like apple pie and ice cream’, it is a concept that no one can dislike (Stromseth et al. 2006, p. 58). Typically within development cooperation, donors push for rule of law based on two rationales – rule of law is an essential prerequisite for market economy and it enhances protection of human rights (Messick, 1999; Carothers, 2001).

In relation to post-conflict settings, a third rationale can be added, namely rule of law in the achievement and maintenance of peace and security. This is a rather late contribution to the field of rule of law promotion. Stripped to all essentials the argument goes something like this: human rights violations and high levels of insecurity cause conflict and crisis, and if the rule of law is an essential condition for making human rights a justifiable claim, not merely rights on paper, then it is the key strategy for post-conflict recovery.

Introduction

Nepal is poised on the verge of a historic and precarious precipice. Nepal, having suffered from a more than decade long armed conflict with devastating impacts on the social and political foundations of the country, is on the verge of peace. Although in size, Nepal is only 855 km from east to west and 193 km from north to south, and populated by 24.2 million people, it is situated between India and China, having potentially large geopolitical and strategic impacts on world politics. Members of the Maoist insurgents are poised to become part of the mainstream political structure. Yet, if they were to be dissatisfied with the peace process and stage a coup for example, strong reactions would come from both of its neighbours. The way in which Nepal chooses to solve its conflict and address the primary and secondary causes of it, certainly has implications for leaders and international security policy experts with interests in countries with similar preconditions; they can potentially learn from the Nepali case, and avoid thousands of unneeded lost lives.

At the writing of this chapter, peace talks between the Maoist talk team and the Seven Party Alliance (SPA) were underway. Although the appointment in August 2006 of Mr Ian Martin, Personal Representative of the United Nations Secretary General in Nepal for Support to the Peace Process (a choice hailed by all parties to the conflict) the inability of the parties to advance on topics such as the role of the monarchy and the management of arms and armies, has led to untenable peace and a future with potential further violence.

Introduction

There are around 12 million refugees around the world today. The total population of concern to the United Nations High Commissioner for Refugees (UNHCR), including asylum seekers, internally displaced persons (IDPs) and stateless persons, is nearly 20 million, many of whom are displaced as a result of armed conflict (US Committee for Refugees 2006; UNHCR 2006). There are three types of durable solutions to refugee situations: return/repatriation, local integration and resettlement in a third country. Repatriation has over the past twenty years become the distinctively most important solution, preferred by the UNHCR as well as most host states. Having long been the ideal solution only in theory, in the mid-1980s repatriation started to be endorsed as the ideal solution also in practice, and today the other two solutions – local integration and resettlement – are applicable to less than 1 per cent of the world's refugees (Chimni, 2003, p. 195; 2004).

In an Agenda for Peace, under the heading ‘Post-conflict peace-building’, Boutros-Ghali (1992, Para 55) included refugee repatriation among factors that will help to consolidate peace after war. In 1997, then High Commissioner Ogata (1997, p. vii) wrote that ‘peace-building requires just solutions for refugees and displaced persons.

China is today facing a war against drugs, a war that has been threatening the very fabric of the state. The drug threat emanates from multiple sources ranging from states in its periphery, regional criminal networks to domestic actors, such as local triads, which account for the bulk of the production and sale of narcotics in China. As China gradually opens up, the drug problem is becoming increasingly serious and threatens China's progress, especially in the field of health, economy and public security. This development is driven by the rapid economic development and the creation of a strong consumer base in China for narcotics. As seen in Central Asia, Afghanistan and some Southeast Asian states, economies seriously affected by the narcotics trade usually have a worsened health situation with the increase in HIV/AIDS, Hepatitis C and other drug related diseases (Swanström and Cornell, 2006, pp. 10–28). There have also been cases of ‘narcotisation’ of states leading to political instability (Cornell, 2006, pp. 37–8; Swanström, 2007). They are usually associated with decreased competitiveness of the national economies as drug related industries offer steady incomes in states with high unemployment and where few opportunities exists for a secure income, at the legitimate market. One of the most problematic effects in such states has been weakening of the state apparatus by the criminal networks that deal with drugs. Such networks thrive in weak states where they exercise control over the political elite or simply become a part of the elite.

Introduction

Is the implementation of a peace agreement a severe obstacle for peace? Conventional wisdom holds that the failure to implement peace agreements is an important explanation of the recurrence of war. Much scholarly work has been devoted to how the design of peace agreements can pave the way for peace. In this regard, power sharing is seen as a viable solution to end civil war. Agreement on the sharing of power is a concession by warring parties that can be seen as a sign of credible commitment. Such concessions often entail compromises on how political, territorial and military power is to be shared or divided in a future form of governance. However, the implementation of such power-sharing pacts has only to a limited extent been the focus of quantitative analysis. This chapter presents new data, namely the IMPACT dataset, to fill up this empirical deficit within the literature on post-civil conflict settlements. The IMPACT dataset contains data on internal armed conflict settlement provisions in 83 peace agreements struck in the period of 1989–2004. It includes data on the most important components of a peace agreement, with regard to the contested incompatibilities, namely political, military and territorial pacts. Furthermore, it includes unique data on to what degree such pacts were implemented following the signing of a peace agreement.

The chapter is structured in the following way. We begin by discussing literature on durable peace and peace agreements, and formulate four expectations based on this research.

The development of a new AU peace and security architecture attracts much interest today from academic and policy communities alike. Various organizations, not least the UN, are zealously debating the nature of such institutional structures and what best role external actors can play to support and bolster them. Many interesting changes are underway with regards to African security sector reform, combating terrorism and small arms proliferation as well as early warning frameworks. I will focus specifically on one aspect – peacekeeping and peacebuilding capabilities, where there has been a prominent change in emphasis from the Organization of African Unity (OAU) to the AU. Before the end of the cold war the OAU had started putting human beings more and more at the centre of their management of peace and security issues. I provide a broad account of how the OAU was severely constrained in doing so. The AU, since its succession to the OAU in 2002, has continued this transformation in concerns and priorities. As well as elucidating and explaining some background factors to why the AU has started couching its conflict resolution mechanisms in human security language, I analyse to what extent the AU can be an actor for the promotion of human rights and human security. This increasing importance can be seen in many ways but I will focus specifically on the cases of the African Union peace missions in Darfur, Sudan and in Burundi.

This chapter examines the vexed issue of the place for Arab Islamic movements, such as Palestinian Hamas – The Islamic Resistance Movement – within democracy and democratic peace. Some analysts would claim that Arab Islamic movements have no place within democracy, due to Islam's inherent incompatibility with democracy (see Sörensen, 1993; Huntington, 1993; Tibi, 1998; Kramer, 2001; Spencer, 2005). Spencer asserts that in Islamic law, all non-Muslims are considered inferior to Muslims. Another claim often aired is that Islam constitutes a threat to the basic values of the West, including its democratic mode of governance. Others contradict these claims, highlighting democratic, grassroots level structures that Islamic organizations have built throughout history (Esposito and Voll, 1996; Midlarsky, 1998). Furthermore, the democratic popular political culture of the (mostly) religious Arab masses, in contrast with the undemocratic political structures of their governing regimes, forms the setting within which Islamists must act. (Goddard, 2002; Tessler, 2002; Inglehart, 2004) Hamas's election victory in January 2006, handing it control of the Palestinian parliament, is the first time that an Arab Islamist party has ascended to power democratically in the Arab world.

Introduction

Since mid-1990s the United Nations and other multilateral organizations have through the establishment of international transitional administrations assumed responsibility for governance of war-torn territories. United Nations Interim Administration Mission in Kosovo (UNMIK) is one of the bold experiments in internationally supported post-conflict state reconstruction, democratization and peacebuilding. International transitional administrations, such as UNMIK can be regarded as unparalleled opportunities to exert a normative influence and mould the state in reconstruction into a peaceful, liberal democracy. When the United Nations itself assumes a governing role, there is a temptation to demand the highest standards of democracy, human and minority rights, the rule of law etc. However, UNMIK was established through democratically deficient international processes and it is obviously not a representative democracy and should therefore not be held to the standards of a liberal democratic state. Yet, the mission is mandated to promote democracy and build democratic institutions of governance in Kosovo. How can liberal democratic norms be diffused in war-torn societies? What affects the ability to adopt norms of liberal democracy in societies that lack democratic culture? Through what means and channels is the UN promoting liberal democratic norms in Kosovo? To what extent are the Kosovars adopting these norms?

Taking the social constructivist assumption about norms and practices as mutually constitutive, this chapter sets out to explore the discrepancy between UNMIK's norm advocacy and practice of democracy.

Introduction

The far-reaching scope of peacekeeping mandates and the multitude of actors deployed in contemporary peace operations render the application of peace operations as human rights mechanism, much more difficult compared to traditional UN human rights mechanisms. An often overlooked but significant challenge for peace operations acting in such capacity is the establishment of mutual understanding and agreement on human rights between civilian and military peace actors, and the impact of such an agreement – or absence thereof – on the success of peace operations. This aspect involves issues as diverse as inter-agency cooperation, cultural differences between military and civilian actors and how international human rights law is accepted, embraced and ‘operationalized’ in such complex multicultural and politicized settings. Above all, it addresses the issue of how and under which conditions human rights standards and norms are best advocated by peace actors.

The aim of this article is to examine how UN peace operations may enhance their potential of promoting human rights by analysing how peace actors communicate and reach agreement on human rights. The underlying presumption is that effective human rights promotion and protection is contingent on the existence of a common understanding of human rights among different components of a peace operation. Such examination will be undertaken by analysing data collected in the field in the light of discourse theories of human rights, drawing primarily on Jürgen Habermas' theory of communicative action.

Introduction

During the last few decades, the nature of peace and development in the international system has shifted considerably so has the measures applied in support of those values. Whereas ‘war’ has structurally shifted from being interstate concern to becoming intrastate in nature, ‘development’ has moved from one of typically defining national development strategies to one of tapping into a neo-liberal global order in the most efficient way possible. As such, the values and processes of, and measures to support, peace and development have, to a large extent, conflated. Moreover, internal war is typically founded in a particular political economy further feeding – or even being the origin of – conflicts; adaptation to the neo-liberal globalization has, on the other hand, turned ‘development’ into a conflict prone process, marginalizing large number of people. Globalization which – for good and bad – is driving the processes described above will not fade within the foreseeable future, but rather it is likely that the trend will increase in the decades to come. While undeniably, this shift in ‘order’ has brought some positive values, globally the problems may be even more severe, including the creation of social and internal conflicts, ethnic strife, political instability (often related to democratization), pauperization, forced migration and rampant natural resource extraction with severe livelihood losses for millions, just to mention a few of the far too prevalent problems.

Introduction

In research on armed conflict, a debate is emerging over the influence of diasporas on civil wars in their homelands. Many prominent scholars claim that diasporas are especially prone to political extremism and the use of violence to resolve political disputes. In their view, remaining in the homeland and experiencing the atrociousness of war sobers previously idealistic goals of gaining territorial sovereignty or state power and tempers rather than exacerbates tensions between groups. Those who migrate during civil conflicts however avoid the moderating costs of war. While abroad, diasporas are empowered by economic upliftment, and by the freedom to pursue extremist agendas unobstructed by homeland government oversight. Other scholars have challenged these views, offering evidence that diasporas are actively involved in peacebuilding and conflict resolution in their homelands. In this chapter we provide an examination of the arguments offered in support of these opposing claims. In the process, the debate is situated within the broader context of globalization and the challenges and opportunities it presents for building peace. By way of conclusion, we present some of our own reflections on the arguments for viewing diasporas as extremists and/or moderates, and point out some possible directions for future research that would help to bring forward the debate over diasporas and their roles in conflict and peace in the homeland.

Civil War and the Challenge of Building Peace

Armed conflict peaked in the early 1990s as the cold war came to an end in Europe and new states were formed in the aftermath of the collapse of the Soviet Union and Yugoslavia.

Introduction

Mainstream View

The ‘mainstream’, ‘neo-classical view of the competitive process believes that the perfectly competitive model best describes the essence of capitalist competition. Departures from it are viewed as exceptional. In this view, there are limitless opportunities for firms from developing countries to ‘catch-up’; if they are forced into competition on the free market of the ‘global level playing field’. At the heart of the mainstream view is the self-equilibrating mechanism of market competition. It is believed that the basic driver of the capitalist process, competition, ensures that if any firm enjoys super-normal profits rivals will soon enter to bid away those profits and undermine any temporary market dominance that the incumbent enjoys. The neo-classical approach emphasises the importance of competition among small firms as the explanation for the prosperity of the advanced economies. Milton Friedman, for example, believes that there is ‘a general bias and tendency to overemphasize the importance of the big versus the small’ (Friedman, 1962: 120–3).

Mainstream economists argue that managerial diseconomies of scale set in after firms reach a certain size. The classic expression of this view was contained in Marshall's Principles of Economics (1920: 315-6), in which he likens the competitive process to the ‘trees in the forest’. The forest canopy never grows above a certain height. Large trees eventually lose their vigour and are replaced by newcomers: ‘[I]n almost every trade there is a constant rise and fall of large businesses, at any one moment some firm being in the ascending phase and others in the descending.