“I am very concerned that the rule of law is being reduced to some of its more familiar trappings such as rule-of-law institutions–police, courts, prisons–and that the rule of law is really used interchangeably with law enforcement, which of course is a cheapening of the rule of law,” says Louise Arbour a former international prosecutor who for the last three years has been the president and chief executive officer of the International Crisis Group.
In this interview, Ms. Arbour discusses broadening the conversation about the rule of law to make sure “it is understood for what it really stands for.” She also talks about peace and justice, and the importance of establishing rule of law as an essential first step in transforming countries that are struggling to reinvent themselves as more representative societies, such as in the Middle East and North Africa. She discusses new challenges to the rule of law coming from transnational threats such as transnational organized crime and illicit trafficking.
The interview was conducted by Warren Hoge, IPI Senior Adviser for External Relations.
Listen to interview (or download mp3):
Warren Hoge (WH): I am very happy to welcome as our guest in the Global Observatory today Louise Arbour, who for the last three years has been the president and chief executive officer of the International Crisis Group (ICG). This of course is just the latest in the number of high-profile positions she has occupied on the international stage, and they include being chief prosecutor of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, a justice on the Supreme Court of Canada, and United Nations High Commissioner for Human Rights.
Louise, that history gives you serious credentials to talk about the subject that will be the focus of the opening high-level debate of the General Assembly this fall, and that is the rule of law. I know you have very specific ideas about how you think that debate ought to go, what it ought to focus on, and also what it ought to avoid.
Louise Arbour (LA): Yes, I am very concerned that the rule of law is being reduced to some of its more familiar trappings such as rule-of-law institutions–police, courts, prisons–and that the rule of law is really used interchangeably with law enforcement, which of course is a cheapening of the rule of law. I am afraid that the UN might be on the road to make the same mistake in the sense it did with elections, which is reducing elections to their mechanics, rather than seeing them for what they are, which are substantive political events. So I hope that we could broaden the conversation about the rule of law to make sure it is understood for what it really stands for.
WH: Peace and justice, you know what that is shorthand for, this tension between these two concepts, two practices, with perfectly well-meaning people on both sides saying ‘you must not sacrifice peace by insisting on justice’ and others who are saying ‘you cannot sacrifice justice for the sake of peace.’ Explain to me please your position on that because I know it is a clear one.
LA: I am not certain that it is a clear one or that it is easily explainable. The first thing, I think, one has to say is that these two aspirations for peace and for justice are of equal merit. I think particularly in post-conflict, or in countries where conflict is raging, the appetite for peace and the appetite for justice are perfectly legitimate aspirations. We should do everything we could to validate both.
In common law legal systems, the one I come from, they are so interlinked that in fact a police officer is called a peace officer. And we talk about peace bonds, an order to keep the peace. The concept that justice is an element of peace is very, very clearly expressed. Now in the international scene, particularly in conflict situations, we see a tension develop between the two. In large part, I think, because we have made a lot of mistakes by using very facile rhetoric like ‘justice as an instrument of peace.’
If by that we mean you indict a war criminal when you can’t think of anything else to do in the hope that this will bring peace, which in the case of Milosevic it did, in other cases much more problematic whether it did or would have, in the case of Qaddafi, for instance. So I think there is enormous confusion about how to have these two aspirations resolved. And in my view they will both be better served if they are segregated, completely separated. I think peace mediators, to suggest that they should be negotiating either the indictment or the release of someone who has been indicted is ridiculous. They have no authority to do that; these are judicial processes. So I think separating the two tracks, in the longer term, will serve both best.
WH: We are witnessing the beginning of fundamental transformations of countries across the Middle East and North Africa. As these countries struggle to reinvent themselves as more representative societies, is establishment of the rule of law an essential first step, and is it possible, on that essential first step, to try to guarantee that some of the bad things that can happen with institutions of law, which are then taken over by repressive regimes, don’t happen?
And finally, I wanted to add something which I have learned today, which is this ICG insistence that solutions be "contextual." Obviously, in these countries systems of justice and systems of law may look quite different than the ones we have here. Is it important to make sure that the systems that are created are ones that are indigenous that are contextual to their regions?
LA: Yes, very much so. I think to come back to the first part of your question, if by rule of law we understand law enforcement, rule by law, respect for law, in a lot of authoritarian regimes people are very law obedient. You’d better be.
I just came back about a month ago from Myanmar, a country that is now undertaking major reform—in fact, probably, the best news story of 2011-2012. But I asked someone just as I was arriving whether it was safe to walk on the street and you don’t even have to ask. ‘Yes, it always is!’ And actually it may become a little less so as the country opens up. A little chaos is often the price one pays for the relaxing of what I would call “rule by law:” tough, authoritarian law enforcement. So we need to be very clear that when we talk about the promotion of the rule of law we don’t play into the hands of authoritarian regimes who will be very happy to receive more assistance for more law enforcement.
When we talk about rule of law, we talk about equal protection, equal benefit of the law, equality before the law, no one is above the law. These are concepts that are substantive not formal. They talk about justice, protection of the vulnerable, protection of minorities, which are not otherwise guaranteed by pure electoral processes. That is what the law adds to democracy; it is protection of interests that majority rule doesn’t always protect. That is the legal entitlements that protect those interests; that is what I think we need to promote.
WH: There are new challenges to the rule of law coming from emerging threats such as transnational organized crime and illicit trafficking. How can international organizations such as the United Nations and also states adapt their responses?
LA: You may be familiar with work of the Global Commission on Drug Policy of which I am a member, which has been calling for the lifting of the forty-year-old taboo against questioning the whole wisdom of the ’war on drugs.’ In a sense that is probably a very good example of a rule of law approach to a global problem.
We are in a sense trapped, we have been trapped, in a repressive model. A model for countries of production, countries of transit, and countries of consumption entirely based on a repressive premise that we will win a ‘war on drugs,’ we will eradicate drug production and drug consumption by repression. And the empirical evidence is overwhelmingly that this has been now a nearly fifty-year-old failure. It has produced none of its desired objectives. There is no reduction in consumption, in production, and in fact the countries of production and of transit are paying a catastrophic price, going to the extent almost of the destabilizing the state itself in countries like Guinea-Bissau, now spreading to West Africa, from, of course, a long-term devastating effect in Central America, for example.
Again, what the rule of law, a more substantive approach, would require is an approach, first, that is not based on ideological premises, that is evidence-tested, and that reflects fundamental public health policies, human rights values, and that doesn’t buy into a pure system of law enforcement and repression.
WH: Finally, you wrote in a recent ICG Global post that as NATO prepares to draw down its forces in Afghanistan, the countries in the coalition ought to be incorporating the UN more in the overall dialogue. And you suggested an active role for the Security Council and the Secretary-General, tell us about that please.
LA: I think throughout the war in Afghanistan there was a concern, I am sure, that at the end of the day the UN would be left to pick up the pieces. That if things didn’t quite work out, or after everyone else is gone, it is often the UN that is left, often for decades, to pick up the pieces. So I think that might have been a kind of intuitive resistance in the UN to play larger a role than absolutely necessary.
We think now at International Crisis Group that we have to reverse that logic. That in fact a proper serious mediation role towards a transition and a longer-term support has to be owned by the United Nations and that sooner rather than later the UN should step up to the plate. Not to be left to manage something that it will have had little role in creating, but to play a critical role in the mediation for the termination of the conflict and the departing of the alliance troops.
WH: Louise Arbour, it is always a pleasure to see you in New York and this particular case, a real pleasure to see you with IPI. Thank you.
LA: Thank you.