INTRODUCTION

The international rule of law subjects the international order to the principles of the rule of law – a concept that originates in domestic frameworks – and externalises its rationales to the relations between states and other subjects of international law. One of the main principles of the rule of law requests the law to be equally enforced by an independent judiciary. For this purpose, the international legal framework has shouldered national courts with a major responsibility to enforce international humanitarian and criminal law. In accordance with this structure, domestic courts, which constitute an important pillar of the international judicial enforcement mechanism, have two judicial functions: they operate as agents of the international legal systems, and as conventional domestic institutions. While the international judicial system, composed of national and international courts, has been established, international law has also continuously been enforced by political actors, which have been traditionally confined to that role through the exercise of diplomacy. From a rule of law perspective, it has been hoped that the growing practice of courts would gradually replace the political enforcement of international law, and that the proper function of national courts in their application of international law, along with the work of international courts, will dictate the extent to which the international order is governed by the international rule of law. This chapter examines the function, in a post-conflict context, of one of these national judicial actors: the Serbian War Crimes Chamber.

In 1993, as a reaction to atrocities in the wars in the former Yugoslavia, unprecedented in Europe since World War II, the international community established the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), mandated under Chapter VII of the UN Charter to try those responsible for such crimes. Although the Statute of the ICTY (Article 9) establishes its jurisdiction with primacy over the national courts, it has never been implied that it limits their responsibility in prosecuting war criminals. Each state of the former Yugoslavia has retained its own jurisdiction over the crimes falling under the ICTY Statute and its own obligation, both under international and national laws, not to leave such crimes unpunished.

Having presented the preceding thirteen case studies of how domestic courts apply, or do not apply, international law in various post-conflict and transitional settings (specifically, in Afghanistan, Bosnia and Herzegovina, East Timor, Iraq, Nepal, the Russian Federation, Rwanda, Serbia, and South Africa, as well as two cross-cutting studies), the time has come to take stock and draw some conclusions, while duly acknowledging the heterogeneity of the legal systems and post-conflict situations studied. We structure these Concluding Observations under the headings that we identified in the Introduction, and use these to integrate the lessons learned from the case studies.

In section 1, we provide an overview of the types of ‘constitutional moments’ that allowed for an increased role of national courts in the application of international law in the various situations studied. In section 2, we discuss the form and substance of domestic courts’ empowerment to apply international law in the different settings. In section 3, we review the role of the various actors involved in receiving or importing international law. Any concerns of the reader that an overly optimistic picture is presented by this overview of empowerment techniques should be immediately assuaged in section 4, which addresses the various limitations of applying international law in domestic courts which may have grown more accustomed to a violent and authoritarian political order than to a robust rule of law. Finally, section 5 discusses the effects and legacy of international law implementation by domestic courts in post-conflict or transitional situations. It questions whether the application of international law really makes a difference for post-conflict societies, and whether international intervention produces any lasting effects in terms of rule of law entrenchment or broader societal stabilization.

It is to be stressed up front that the conclusions in section 5 concerning recent changes in the countries studied are by necessity tentative and can only be assessed conclusively over a longer time-horizon. Also, we do not suggest that the gap between official support for international law and the actual application of international law by domestic courts is a phenomenon peculiar to post-conflict societies.

INTRODUCTION

For some time now, we have been told that the rule of law is high on the international agenda for several reasons: it brings political stability and prompts economic growth, and it is also central to sustainable development and contributes to international peace and security. Working around the hypothesis of an international version of the concept, I suggested that ‘the “rule of law” is undoubtedly one of the most powerful expressions in the modern world. In a sense, it has become an activity in itself, a mental-social phenomenon which exists within human consciousness and acts independently within physical social realities, like a pat on the back or a slap in the face.’ Indeed, it can be argued that the rule of law has become a ‘buzzword’ (‘buzzphrase’) in legal theory and political studies. To borrow from Ogden and Richard's philosophy of language, the rule of law is a formulation of ‘hurrah!’ words; that is to say, words that provoke a good feeling in those who voice or hear them.

On the more cynical side, Carothers observed: ‘[o]ne cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world's troubles.’ The United Nations has fuelled such criticism in recent years, including in the context of post-conflict states and other situations of transition. Witness, inter alia, the 2004 UN Secretary-General's report on the rule of law and transitional justice, the outcome document of the 2005 UN World Summit, with a full section on the rule of law, and the uninterrupted string of resolutions by the UN General Assembly, from 2006 to 2010, all entitled ‘The Rule of Law at the National and International Levels’, as well as the creation of a rule of law unit in the Executive Office of the UN Secretary-General and the many reports by UN officials on the rule of law since 2006. In short, perhaps the rule of law has been a victim of its own success because, as we all know, too much of a good thing can be harmful.

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. The legal system may be in need of rebuilding or reinvention to bring a climate of lawlessness to an end and create the conditions for a more stable future. The culture of impunity, lack of accountability, lack of rights protection, and, more generally, lack of respect for the rule of law that may have been pervasive in societies before undergoing the transition from autocracy to democracy often persist during the transition period itself. To the extent there is law, local ‘strongmen’ may be above it, or the law is co-opted by power to serve its ends. During the transition from violence or oppression, the pre-existing legal system, in whole or in part, may be temporarily suspended or permanently dismantled, and with it any semblance of the rule of law.

The rule of law challenges that characterize this period may include generalized insensitivity toward the plight of victims of the conflict or the deposed authoritarian regime; major criminals may get away with reduced sentences or outright impunity, ringleaders of criminal enterprises may escape their due because domestic legislation is not adequately equipped to address such modes of responsibility as command responsibility or joint criminal enterprise; the economic and social rights of marginalized groups may be insufficiently protected; judicial review of executive decisions may be non-existent; and the political branches may routinely interfere with the affairs of the judiciary.

During transition from one system to another, different layers of law may moreover be operational at the same time, creating confusion as to which legal standard should apply. Such heterogeneity of law, or legal pluralism, hardly furthers the goal of legal certainty so essential for dealing with past abuses onthe basis of the rule of law as opposed to arbitrariness. If there is no continuity of the domestic legal system, the break with the troublesome past may entail impermissible retroactivity of new law. The new regime may also need to grapple with abuses that were committed under color of law in the old regime, by persons obediently doing their duty.

INTRODUCTION – PROMISING CONDITIONS AND UNFULFILLED PROMISE

In a book that contains so many laudable chapters detailing the rising importance of international law applied directly in domestic courts, Iraq stands as a stark anomaly. Following the departure of the US and UK administered Coalition Provisional Authority (CPA) and the restoration of Iraqi sovereignty to a democratically elected government, Iraq's authorities seem to be at best equivocal and at worst somewhat hostile to the notion that Iraq's domestic courts should play a role in ensuring that Iraq abide by its international legal commitments, in particular as concerns the matters of human rights and criminal law that attract much scholarly attention.

This is rather surprising for two reasons. First of all, Iraq is not a nation that is wary of international commitments. This was very much the case historically, and even more so following the fall of the Saddam regime. Prior to 2003, Iraq was a signatory to most major human rights treaties, among them the Genocide Convention (acceded to in 1959), the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) (both ratified by Law 193 of 1970), the International Convention on the Elimination of All Forms of Racial Discrimination (ratified 1970), the International Convention on the Elimination of All Forms of Discrimination Against Women (ratified 1986), and the Convention on the Rights of the Child (ratified 1994).

If anything, the commitment to international law as a formal matter has grown more robust. Even a cursory glance at Iraq's legislative achievements over the past legislative term, running from 2006 to 2010, demonstrates a decided commitment to enter into international obligations and treaties of various sorts rather than, as regrettably happens all too often in the United States, to avoid them on the grounds that they are some sort of pernicious ‘entanglement’. In 2008 and 2009 alone, for example, Iraq's Council of Representatives, which serves as its legislature, ratified or acceded to twenty-two separate international treaties or covenants, a number that I surmise would compare well with ratification rates in nearly any other nation over the same time period.

INTRODUCTION: THE ROLE OF LAW IN STABILISING CONFLICT

There has been a lot of attention in recent years about improving the quality of legal systems in overseas jurisdictions. This is reflected in the growing proportion of rule of law components in development assistance and, especially, in postconflict stabilisation missions. External actors endeavour to strengthen the role of international legal standards in the courts and, more broadly, the political life of societies emerging from violent conflict. Virtually all stabilisation missions contain today important rule of law components, a shift in emphasis that is mirrored in bilateral financial assistance. The international engagement in Afghanistan since December 2001 has been no exception, having placed a heavy emphasis on introducing international legal norms into the Afghan legal and political system.

This concerted interest in the rule of law in peripheral overseas societies is generally justified by reference to the normative conviction that human beings are equal and deserve equal protection, thus calling for the application of uniform international standards. This essentially moral position is sometimes cloaked in the language of enlightened self-interest, claiming that the protection of equal norms abroad will prevent negative spill-over in the future:

To many, the veracity of this causal chain was powerfully affirmed by the painful experience of the attacks of September 2001, which directly led to the costly and on-going military intervention in Afghanistan. According to this popular reading of history, societal collapse can never be contained, but will eventually reverberate through the international system.

INTRODUCTION

Bosnia and Herzegovina (BiH), as one of the countries in the former Yugoslavia, went through the worst conflict in Europe since the Second World War. BiH therefore ended on ‘the long list’ of countries in post-conflict situations that need to rebuild the rule of law. While it is true that the responsibility for (re) establishment of the rule of law rests primarily with the local population and should ideally be initiated or led by domestic actors in order to secure a ‘local ownership’ of the process, this option is not always available, and external assistance may be needed.

In the circumstances of BiH, the international community played a significant role by, inter alia, introducing various international components (including institutions, personnel, and new legislation incorporating international law) in order to actuate the rule of law. This chapter examines how successful were such rule of law efforts that were not rooted in the local context, but rather imposed from outside.

The rule of law is a complex system which strives to achieve various goals. The focus of this chapter is on two such goals: providing efficient and impartial justice, and upholding human rights. Due to the importance of the role of international law in achieving these goals, the chapter includes analysis of both the process of empowering domestic institutions to apply international law as well as on the actual application of international law.

The chapter starts by looking at the involvement of the international community in what could be described as a first constitutional moment, ie the conclusion of the Dayton Peace Agreement (DPA), of which the new Constitution is an inherent part. The first part examines the complicated state structure of BiH established by the DPA, the special legal nature of the Constitution, and the position of international law in the Constitution and some of the challenges on the road towards a full-fledged democracy, including problems with the discriminatory nature of some of the constitutional provisions.

INTRODUCTION

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. After apartheid, South Africa adopted an impressive Constitution which considers international law and justiciable human rights as pillars of the new democracy. The negotiators of the new constitutional framework acknowledged that the decades of economic and social exclusion of a large proportion of South Africa's population had to end if the rule of law was to be established in a meaningful way. A mere retraction of discriminatory laws and an adherence to a formal (‘thin’) notion of the rule of law was viewed as insufficient to break with the abusive past of the apartheid era. Instead, the drafters adopted a ‘thick’ account of the rule of law. The aspiration of this substantive conception of the rule of law is characterized by the commitment to the values enshrined in South Africa's Bill of Rights, including justiciable economic and social rights. The preamble of the 1996 South African Constitution states that the country modified its constitutional framework in order to ‘[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.’

The present volume studies the effects of empowering domestic courts to apply international legal principles after countries emerge from conflict or oppressive rule. South Africa is an example of an attempt to empower domestic courts to consider international law. Perhaps even more importantly, South Africa is an example of a domestification of the international rule of law: whereas the previous Constitutions of 1910, 1961, and 1983 had no bill of rights, the drafters of the current, 1996 Constitution made a deliberate effort to harmonize the new Bill of Rights with international law. The reliance on international human rights norms was not confined to civil and political rights, but the 1996 Constitution includes a wide range of justiciable socio-economic rights and adopts language from the International Covenant on Economic, Social and Cultural Rights (ICESCR) and from General Comments of the UN Committee on Economic, Social and Cultural Rights (‘the UN Committee’).

INTRODUCTION

Memories of the conflict in Bosnia are still fresh for those studying post-conflict nations and their rehabilitation efforts. With these efforts to restore peace and order, the common lingua franca of rule of law is actively engaged, including a multitude of actors, goals, and perceived operational successes. In the context of Bosnia, one of the clearest examples of formalizing and establishing the rule of law or, perhaps more accurately, the International Rule of Law (IRL), was facilitated with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY was mandated to ‘bring to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991 and thus contribute to the restoration and maintenance of peace in the region.’ Concurrent with this international initiative, the local courts in Bosnia were tasked with trying ‘less serious’ war crimes cases.

With the closure of the ICTY, the ability of Bosnian courts to prosecute war crimes cases will become a major manifestation of this IRL implementation because they will be the only ones engaged in these prosecutions. Thus, the ability of local courts to prosecute war crimes and their compliance with international law and general standards of fairness represents a tangible way of assessing the impact of IRL in a post-conflict society and highlights potential problems in its implementation. The work of local courts is also illustrative of the process of re-strengthening the domestic rule of law by the introduction of international legal oversight and international legal institutions. For example, the Office of the High Representative (OHR) was appointed to help focus the number of courts, their locations, jurisdiction, and ethnic balance.

Post-conflict adjudication systems must account for factors outside of structural and rule of law implementation mechanisms, and acknowledge that the post-conflict restructuring efforts must be comprehensive and account for economic, sociological, historical, cultural, and anthropological aspects of the society in question. For the implementation of the rule of law is hindered not only by legal procedural and substantive issues, but by larger political and social limitations.

INTRODUCTION

The degree of social, economic, and psychological damage caused to Nepalese society by the armed conflict between the government and the Communist Party of Nepal (Maoist) during 1996–2006 is yet to be fully measured. However, there are some indicators. The armed conflict is said to have claimed more than 13,000 Nepali lives and about 1,500 people were involuntarily disappeared and thousands remain displaced. There were several other serious violations of human rights, including widespread practice of torture and use of child soldiers. The Comprehensive Peace Accord (CPA), signed in November 2006, formally ended the armed conflict. It paved the way for the promulgation of the Interim Constitution and election for the Constituent Assembly. However, the Constituent Assembly failed to meet the two-year deadline to promulgate a new constitution in May 2010, and extended its tenure for one more year. A political impasse has contributed to the failure of the Constituent Assembly to select the Premier in its Parliamentary capacity and it has further delayed the constitution drafting process. Ultimately, it has also delayed the formation and implementation of a comprehensive post-conflict justice scheme for Nepal.

At the time of writing, Nepal faces many complex challenges for the consolidation of the rule of law that was brought to its lowest ebb during the conflict, and for the establishment of a stable democratic regime. For this purpose, among other things, it is necessary to deal with the human rights violations committed during the armed conflict. Even after the end of the conflict, the failure of the Nepalese state system to prevent or end the culture of impunity perpetuated during the armed conflict has not been ameliorated, and nor have the provisions of the CPA relating to the post-conflict justice measures aimed at remedying past abuses been implemented. Among the reasons for the difficulty facing the domestic legal system in dealing with past human rights abuses may be the absence of a strong legal framework and the role for the principle of legality in dealing with past cases (prohibition of retroactive application of the law).

INTRODUCTION

When the long and brutal war in Bosnia and Herzegovina finally ended in 1995 with the conclusion of the Dayton Peace Agreement (DPA), the country was in tatters. One of the many challenges facing post-war Bosnia was the establishment of a legal system based on the rule of law. This (re)building, from a human rights perspective, was characterised by three particular features. First, the key normative framework was the European Convention on Human Rights (ECHR), with which the Bosnian legal system was not familiar at all. Secondly, that treaty was not particularly geared towards the specific conflict-related problems Bosnia was facing, such as large-scale displacement and expropriation. Thirdly, the judiciary itself had, just as most of the power structures within the country, become divided along ethnic lines as a result of the war. Many citizens did not think of the country's courts as being impartial or independent.

In order to tackle these problems a sui generis court was created as part of the DPA: the Bosnian Human Rights Chamber. The Chamber was, in the first place, meant to cement effective supervision of the warring parties’ new human rights obligations into the Bosnian state structure. In practice, however, it also served a second function: the Chamber became a judicial translator of norms in applying general international human rights law, preponderantly the ECHR, in a tailormade fashion to the particular Bosnian post-conflict context. Its case law and practice in many ways incrementally embedded those external, international norms in the domestic legal order. The very existence of a new human rights institution and the direct applicability of international norms could, moreover, serve as points of connection for domestic judges and officials who were willing to strengthen the rule of law.

As a mixed institution, with both domestic and international elements, the Bosnian Human Rights Chamber provides a revealing case study on the ways in which international law can be applied nationally in post-conflict states. In order to assess how the Chamber inserted the legal Fremdkörper of international human rights in Bosnian practice, this chapter will look at how the Chamber interpreted and applied several substantive ECHR rights: the protection of property and housing rights.

INTRODUCTION

This chapter focuses on the jurisprudence of courts in liberated territories concerning the laws and administrative acts promulgated and applied by the occupying power. These courts must balance the international legality test against the adverse effects that the enforcement of international law could have on the local population and the returning government. As we show, national courts in the aftermath of occupation tend to attach higher priority to the transitional needs of their societies, and this could lead them, in cases of conflict, to downplay questions of international legality.

Our observations suggest that the need to respect legitimate expectations of individual parties has prompted some courts to validate transactions that were conducted in accordance with the occupant's orders even when such orders exceeded the limits that international law placed on the occupant's regulatory power. Moreover, there is some indication that the commitment of national courts to the processes of national reconciliation and the reshaping of national identity may also be stronger than their commitment to enforcing international law. Finally, considerations concerning the courts’ own reputation may also lead them to downplay the international legality test.

The ‘transitional bias’ of post-occupation courts which prefer transitional considerations over enforcing international law usually benefits domestic constituencies and local institutions. Obviously, however, this bias also reduces the effectiveness of the strictures of the law of occupation: future occupants would realize that their illegal measures would nevertheless be respected by the returning sovereign's courts, whereas appropriate legal measures might be ignored. While the ‘transitional bias’ is perfectly understandable, we argue that courts should nevertheless explicitly invoke this bias in their reasoning, thereby doing justice in a particular case while at the same time refining and developing the ex ante obligations of the occupants. One such example of retaining a distinction between the ex ante legality of the occupant's measures and the ex post validity of their outcomes was demonstrated by the International Court of Justice (ICJ) 1971 Advisory Opinion concerning the South African rule in Namibia. The so-called ‘Namibia Exception’ recognizes the need to respect legitimate expectations that are based on illegitimate legislation.

In order to appreciate the challenges faced by national courts in postoccupation periods, and to explore strategies they adopt in response to those challenges, this chapter examines several judicial decisions delivered in different post-occupation situations.

INTRODUCTION

In the process of empowering domestic institutions, particularly the judiciary, the use of international law is often perceived as a means of stabilizing the legal order, contributing to the protection of fundamental rights, and protecting the separation of powers. Legal scholarship which scrutinizes situations of postconflict reconstruction of legal systems often assumes implicitly, or even expressly, that reliance on international law as the source of substantive norms and processes is beneficial to the domestic system because international law imposes a more stringent standard for protection of human rights than domestic law does. However, international law operates at various levels and in various contexts, and in some of them it may have a destabilizing effect on the domestic system. Moreover, courts are often perceived as the guarantors of the application of international law, shielding individuals from the excesses of government. Yet, in practice, courts no less than other institutions may abuse their power, and such abuse carries particular weight as it is carried out under the guise of law.

This article concerns an incident in which the Court of Appeal of East Timor invoked international legal principles relating to the consequences of illegal annexation when determining the domestic law of East Timor under UN administration and after independence, without giving due regard to their implications in the field of human rights. Rather than enhance the post-conflict reconstruction, this invocation risked destabilizing the emerging political and legal apparatus; it could have brought about a fundamental transformation of East Timor's legal system. While the Court of Appeal's attempt to bring about this change was thwarted by the objection of the legal community and the legislature, the incident demonstrates that the recourse to international law must be discriminative so that it does not subvert the very purpose for which this law is invoked.

Section 1 of this article provides a brief background to the post-conflict process in East Timor. Section 2 describes the dilemma concerning the choice of applicable law in post-conflict East Timor, and the role of international law in shaping that choice, while section 3 examines the role that the Court of Appeal attached to international law with regard to the same question. Section 4 analyses the ruling of the Court of Appeal and the implications for domestic law of unqualified reliance on certain branches of international law.

INTRODUCTION

This paper analyses and compares the practice of implementation and application of international law rules by the domestic courts in Russia before and after the end of the former Soviet Union.

In the last two decades, Russia has gone through two critical moments which dramatically influenced the change of its political, economic, and legal systems, as well as the role of international law in the practice of domestic courts and in the entrenchment of the rule of law. The first of these critical moments was the disintegration of the Soviet Union and the establishment of Russia as a separate state (December 1991). The second was the confrontation between the Supreme Council (former Parliament) and the presidential power (October 1993), which led to the establishment of a new form of government and adoption of a new constitution (December 1993).

This chapter shows the place of international law in the Russian legal order, the role of Russian courts in implementation and application of international law in the Soviet and post-Soviet periods, and reveals some tendencies in their contribution to the development of the constitutional provisions concerning international law – and to the strengthening of the rule of law.

To offer the reader a sense of all the really radical changes, I first offer a brief look at the constitutional and legislative provisions and the judicial practice in the Soviet period (section 2). Then I review the amendments to the Constitution of Russia in the transitional period which reflected a step-by-step movement towards more openness to the international community and international law. I also discuss some of the reasons leading to the adoption of a new constitution, and highlight the basic principle of the 1993 Constitution concerning international law and its significance (section 3). The main portion of the chapter is devoted to an analysis and illustration of judicial practice connected with strengthening the role of international law in the domestic legal order.

INTRODUCTION

Children have been affected by war throughout history.This article will analyse how children in Europe have been a privileged category in qualifying for a refuge protecting them against violence throughout the twentieth century. We focus on three cases during what some have called the long Second World War (1936–45): Basque children during the Spanish civil war, German-Jewish children persecuted by the Nazis in the late 1930s and children in France in the early 1940s. These three groups of children were considered particularly deserving and protection was granted to them. The reasons why these children were singled out for protection will be covered as well as the concrete modalities of assistance to them. Refugee policy at that time was a public-private mix and from the outset civil society was strongly involved in the decision to grant protection to the children.This contribution pays considerable attention to the input of civil society into the rescue schemes. The long-term consequences of these humanitarian programmes directed at children will also be discussed. The rehabilitation and reintegration of the war-affected children can be fully assessed through the evaluation of the rescue operations by all stakeholders, including of course the children.

WAR-AFFECTED CHILDREN FROM SPAIN: OFFERING ASYLUM IN AN EXTREMELY POLITICALLY POLARISED SITUATION (1937–39)

General Franco led a revolt in Spanish Morocco against the democratically elected Popular Front, a coalition of left-wing parties. The Italian fascist government supported this rebellion, thereby enabling it to spread quickly to the Spanish mainland. Burgos joined the insurgents and the rebels moved up to the north of Spain. In the Basque country the rebels met with fierce resistance and battles began by mid-August 1936. The violence of this war was extreme, not only due to the fact that it was a civil war, but also due to foreign involvement. Germany and Italy sent considerable quantities of arms and equipment to the fascist rebels – Germany even gave air support – while the Soviet Union gave military aid to the Republican side. German air support (the Condor legion) added to the high number of casualties and the extreme violence. Not only military objectives were the target: the civilian population was not spared at all.

I am pleased to write this preface on the occasion of the publication of the proceedings coming out of the international conference on ‘Rehabilitation and Reintegration of War-Affected Children’, held in Brussels, Belgium, in October 2009.

CHILD SOLDIERS

One important category of children in armed conflict are the many thousands of child soldiers who are recruited and trained to play an important role in the violence. In relation to this category of children, it is worthwhile to draw attention to two major aspects, i.e. the reintegration of these children and the accountability of those who recruit them.

The reintegration of child soldiers has been a complex issue which has tested even the best programmes on the ground. The Paris Principles of 2007 give us the best guidance, as they contain key insights that need implementation and relate to social and economic rights of children, as well as their rehabilitation and reintegration. Three overarching guidelines configure the entire reintegration effort. Firstly, children must be heard and be enabled to participate in all decisions affecting them, so as to ensure that these decisions are taken in their best interest. Some children for example may think that they are wasting their time at school while they want to learn practical skills. Secondly, nondiscrimination is an absolute must in any reintegration programme. It is important that former child soldiers do not receive a preferential treatment over those who have not been associated with armed groups. Also, particular attention should be given to girls, so as to ensure that they are involved in the reintegration effort and to see to it that their specific needs are being met. Thirdly, the capacity of reintegration programmes and the actors involved should be strengthened in order to ensure their self-sustainability.This is particularly important when it comes to schools and hospitals.

Apart from these overarching guidelines, the same Paris Principles also contain four operational principles that must be implemented to strengthen the effectiveness of the programmes geared at reintegrating child soldiers into society.

This work concerns itself with rule of law assistance in the aftermath of war and crisis. Over the past decade, rule of law has emerged as an essential objective in state-building missions. This has led to a host of programmes and projects on law reform, constitutional development, judicial training, and institutional establishment.

The overriding purpose of this book is to describe and analyse the effects of international assistance, norms and standards on post-crisis legal, judicial and administrative systems. Three central areas are examined – how the rule of law is conceptualised by international actors; what the principal methods are for putting the concept into effect; and effectiveness and international accountability in rule of law assistance.

The first part of this work begins with a description of how different ‘types’ of conflict affect legal and administrative systems, and what forms of intervention have been employed. It then moves on to analyse how the rule of law is conceptualised by specific international actors and the ‘ideologies’, views and interests underpinning the various definitions. This examination provides common characteristics and a framework upon which successive chapters are constructed. The relevance of rule of law conceptualisations is also discussed, particularly their prime relevance to criminal, constitutional, or administrative law.

The second part of the book concentrates on what the principal methods are that international actors apply within rule of law assistance. Following three broad themes – law reform and constitutional reform, institution-building, and access-creation – the typical approaches of international agencies are discussed. In other words, what types of approach work, the main difficulties involved, and how methods in rule of law assistance can be improved. The emerging lack of accountability and effectiveness is then addressed, particularly ways of enhancing the mutual accountability of international reformers and national authorities.

Part three is forward-looking and makes suggestions for improving rule of law reform after war and crisis.

At an unmatched pace children's rights have set a new standard in programs dealing with the plight of children affected by armed conflict. In particular, fieldwork shows that taking children's rights as an overarching guideline and aspiring to fully implement them are widely seen as ‘best practice’ in programs aimed at the reintegration of children associated with armed forces and groups in South Kivu.

However, children's rights with their concepts and categories are not just objectively given, as they are necessarily situated through their genealogy and context. The question thus arises whether they are that easily transposable on the situation in South Kivu. From this perspective, children's rights are not merely an instrument, but they rather actively define and structure how we perceive reality and act upon it. Which problems does the children's rights approach highlight? But also – and maybe more importantly – what does it neglect, leave behind?

Based on fieldwork carried out in South Kivu, this essay aims firstly at unravelling these structural silences. Drawing on narratives of spirit possession amongst former mayi-mayi and of children struggling to come to terms with their guilt, we will see how culture and the child soldiers’ perpetrator side are systematically undervalued. This allows to shed light on the meeting between the children's rights discourse and its legal concepts on the one hand and the local context on the other, and also permits to find out to what extent they are compatible and where they get lost in translation. By doing so we can put children's rights in perspective and complement them with a culturally sensitive approach.

CHILDREN's RIGHTS, A TOOL YET TO BE MASTERED

While the conflict in Eastern Congo was still smouldering, children's rights emerged as an important road map for the reconstruction of society and as an essential building block in the efforts made to reintegrate children associated with the armed forces or armed groups. The introduction of children's rights in these programs has meant a leap forward in bringing the interests of the child victims to the forefront of action. The attention has shift ed away from short-term demobilisation goals towards strengthening these children's education and livelihood opportunities over the long run.

INTRODUCTION

The previous chapter provided a context to war-torn and crisis societies through the discussion on crisis anatomy and the overall structure of international responses in rule of law reform. This chapter examines the objectives behind rule of law interventions, and how the concept of the rule of law is applied and understood by international actors. The reasons behind a discussion on conceptualisation are straightforward. How the rule of law is interpreted and defined at legal and policy levels has a fundamental influence on the level of implementation – that is, on how the concept is put to practice and on what type of reforms that are given priority. Simply put, precise and clear conceptions provide for an easier understanding and compliance, with breaches more clearly observed. Conversely, a lack of clarity greatly diminishes understanding and compliance. As a concept, however, the rule of law does not lend itself to an effortless description.

Absence of clear guidelines on what the concept means for rule of law officers and related staff on the ground is illustrated in a survey conducted by the Centre for OSCE Research. The survey targeted 18 field missions of the OSCE, asking questions to their personnel such as whether they based their activities on any particular rule of law definition or if they had criteria for distinguishing rule of law tasks from those of human rights and democratization. The results from the survey describes the absence of rule of law guidance in the field and, one can assume, is not isolated to the perceptions of OSCE staff but rather symptomatic for most actors involved in rule of law reform: