The purpose of this paper is to explore the leadership dimensions in developing the rule of law. The paper considers the perspective from the United Nations, with the leadership tension is primarily seen from the prism of the rule of law.
This paper explores the leadership challenges in specific recent case studies.
The paper concludes that the most difficult challenge is a culture shift toward respect for the rule of law is required. The paper notes the importance of political leadership in developing consensus.
The challenge is that the implementation of rule of law reform is primarily a political endeavor that affects the balance of powers within the State. This need for leaders to develop the space for institutions advancing the rule of law is most certainly the case in, and exacerbated by, conflict and post-conflict situations.
Jean, S. (2019), "Leadership and the rule of law in conflict and post-conflict societies: A leadership approach through the sustainable development goals", International Journal of Public Leadership, Vol. 15 No. 3, pp. 130-136. https://doi.org/10.1108/IJPL-06-2019-0031
Emerald Publishing Limited
Copyright © 2019, Emerald Publishing Limited
On November 20, 2012, a group of soldiers of the Armed Forces of the Democratic Republic of the Congo (FARDC) entered the town of Minova, in the North Kivu province of the Democratic Republic of the Congo. What unfolded was a tragedy of significant human proportions, in a region that already suffered from several years of conflict. According to the United Nations, during these events several individuals were murdered and at least 126 women, including 24 girls, were victims of sexual violence by these soldiers in Minova and its surrounding villages that month. On May 5, 2014, a military court convicted 26 FARDC personnel in relation to these events. While these convictions fell short of the expectation of the victims, and serious concerns raised in respect of due process principles, it remained remarkable that such a trial could have even occurred in the first place.
From a broader perspective, this particular trial would not have been possible without the leadership of Congolese authorities, including military justice authorities. This, in turn, was very much the result of the outrage expressed by, and the pressure from, national civil society organizations and the international community.
The President of the Democratic Republic of the Congo initiated the enactment of a “Zero-Tolerance Policy” for sexual and gender-based violence crimes in 2010. As such, the political leadership of the country created the necessary space for such legal processes to occur in the first place. This policy was widely publicized and clearly communicated to national legal and political stakeholders. It was well-received and supported, particularly by human rights organizations that led advocacy efforts in support of this agenda. From a legal perspective, the new law strengthened an existing 2006 Congolese law that integrated principles of international humanitarian law into the national legal corpus.
From a broader perspective, however, conflict-related crimes have historically, and largely, gone unpunished in a region where impunity remained the rule, not the exception. This reality, unfortunately, has largely been the case in most conflict and post-conflict societies in the past decades, from the Americas, the broader Middle East, to the Balkans and Africa.
In this context, leaders addressing impunity is key for achieving sustainable peace and security in post-conflict situations. As described by a noted researcher, there are two major purposes to criminal justice: deterrence to other citizens from breaking the laws and creating new victims; and retribution so that individuals do not take justice into their own hands (Diamond, 2012). Both issues, if left unaddressed, can constitute important drivers of conflict.
At the same time, one of the key aspects of leadership as part of peace processes is to precisely address the tension that often exists between achieving peace on the short term, and put an immediate end to human sufferings, and addressing the roots of future conflicts, such as perceived impunity due to the lack of accountability for serious conflict-related crimes. The lack of justice, actual or perceived, is a major cause of resentment a major, and often under-estimated, cause of conflict at both individual and societal levels (Ferro, 2008). The leadership role in developing consensus for an immediate end to conflict and human suffering also includes sustainable governance structures that account for long-term justice.
The rule of law and political leadership
For the United Nations, this leadership tension is primarily seen from the prism of the rule of law. This concept is defined as a broad 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.” This principle requires “measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.
At the same time, the implementation of rule of law reform is primarily a political endeavor that affects the balance of powers within the State. If and when a leader develops political consensus, the necessary space is created for these institutions to be established or developed. This need for leaders to develop the space for institutions advancing the rule of law is most certainly the case in, and exacerbated by, conflict and post-conflict situations.
The term VUCA – volatility, uncertainty, complexity and ambiguity – has often been used in describing the type of challenges leaders face in highly dynamic and complex contexts (Hartley, 2018). By nature, conflict and post-conflict situations are characterized by such VUCA parameters. The extent of the authority of the state may be limited. Concurrently, the capacity and integrity of security and justice institutions restrained. Uncertainty may be prevalent – owing to security or electoral challenges, and the interests of national and international stakeholders may be contradictory or ambiguous. In such circumstances, navigating a sea of conflicting interests, views and priorities is highly challenging. For a leader to define a long-term vision for the rule of law is intrinsically difficult in instances where day-to-day crisis management is demanded. The leader may lack sufficient human and financial capital required to implement such a vision.
The rule of law in practice – examples from Kosovo and Haiti
As an example of these leadership challenges, in 1999 the United Nations deployed a peacekeeping operation in Kosovo with a wide mandate in support of the rule of law. This mission was given executive powers with a view to bring peace and stability, as well as to establish key institutions as mandated under Security Council resolution 1,244. This mandate facilitated, within a matter of months, the establishment of police, justice and corrections institutions ad nihilo with support from the international community. The establishment of these institutions had a key role in the immediate stabilization of Kosovo, under the extraordinary volatile circumstances that prevailed following the 1998–1999 conflict.
From the onset, there was a wide consensus amongst the elite and the population of Kosovo for the establishment of an effective and efficient police service (the Kosovo Police Service). The commitment of the leadership of Kosovo, at both political and institutional levels, facilitated the development of the Kosovo Police Service. Almost 20 years after the deployment of the international presence, the Kosovo Police Service is one of the most trusted institutions by the population. In part as a result of the performance of this institution, Kosovo has one of the lowest intentional homicide rates in the region, which also compares favorably to several European and North American countries.
In contrast, there was no real political commitment or political leadership to establish fair, independent and impartial judicial institutions in Kosovo. The capacity of these institutions to adequately investigate and prosecute war crimes, corruption cases, transnational organized crime and cases arising from interethnic conflict and gender-based violence cases remains a major challenge. Serious concerns have been raised, in particular regarding the independence, accountability, impartiality and efficiency of judges and prosecutors, as well as for access to justice for all, particularly members of non-majority communities and vulnerable groups. The level of confidence of the population in its judicial institution is therefore very low, as consistently demonstrated in surveys conducted since 2007.
Another example of interest is Haiti. The Haitian National Police was established in 1995, immediately after the deployment of a first United Nations support mission in Haiti. While the development of this institution suffered significant setbacks over the years, most notably its collapse prior to the deployment of MINUSTAH in 2004, it has since continued its steady institutional development. While the 2010 earthquake had a substantial negative impact on this institution, it has since increased its capacity, integrity and responsiveness as a law enforcement agency. In a public survey conducted by the United Nations in 2011, 64.2 percent of respondents believed that the police were generally effective at controlling crime in their area. Based on available information, this appears not to have changed significantly since that date. Overall, there remains a clear local political will coupled with overwhelming national and international support for building the capacity of the Haitian National Police. The remarkable development of this institution, most notably with support from United Nations peacekeeping operations since 2004, has taken place as there was the required political space, and social contract, for this to occur in conjunction with clear and visionary political and institutional leadership.
By contrast, there has been limited progress in building the capacity and integrity of the judiciary in Haiti. Judicial independence is limited by existing legislation to the extent that judges are appointed for renewable terms that do not provide a guaranteed tenure. Judicial performance is also generally considered to be very poor. A key internationally recognized indicator of judicial performance found that as of October 2018, 75 percent of detainees were held in pre-trial detention. The conviction rate remains exceedingly low. According to most observers, the majority of the approximately 1,500 magistrates of Haiti are not able to make decisions free from direct or indirect interference by government or politicians. There are serious problems related to corruption, the poor quality of legal representation and the very limited resources to tackle language barriers and ensure redress or reparations following a miscarriage of justice.
With regard to justice reform in the country, four substantive obstacles block meaningful progress: the lack of political will for genuine reform among leading elites; corruption and the lack of effective accountability mechanisms; the lack of continuity and the high turnover of personnel in positions of leadership; and the lack of substantive qualifications of key national counterparts. This is further exacerbated by the challenging social and economic situation of the country. Given internal political and economic interests, and the lack of a social contract for reform, no substantive improvements has essentially taken place in the past years.
Leadership and the sustainable development goals (SDGs)
The issue of leadership for progress toward the rule of law is quite important globally and will become increasingly so as part of the implementation of the SDGs. This agenda has been very much informed by the practices of national authorities and the international community in the past years, including in conflict and post-conflict situations such as Haiti and Kosovo. This strategic agenda for the international community covers a broad range of social and economic development issues, with tangible objectives to be achieved by 2030. Member states have committed to “foster peaceful, just and inclusive societies which are free from fear and violence” and “there can be no sustainable development without peace and no peace without sustainable development”.
Of particular note is SDG 16, which aimed to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. Central to progress toward this goal, which pertains largely to the rule of law, is dedicated and committed national leadership in each country.
For the first time, the international community also agreed to a set of specific targets and indicators to measure progress in this regard. At the leadership level in a national context, both tools are essential to building the institutions called for in SDG 16. The previous experience of the international community with regard to the Millenium Development Goals, particularly in the health and education areas – including from a national leadership perspective – will be of much interest in light of this new agenda. Incidentally, while the SDGs are inter-linked, the process of prioritization amongst them will be based on country-specific situations, but also inevitably on competing political, social, economic and financial interests. Prioritizing and selecting such goals, in relation to education, health, justice or other priorities, in light of limited resources, is precisely a central function of a leader: “to govern is to choose”.
The negotiation process that led to the adoption of SDG 16 was in itself of much interest. As a start, serious doubts were expressed as to the possibility of even measuring progress toward particular outcomes for the rule of law. For some, this was seen as an agenda driven by a certain number of Member States, who were attempting to impose their values or interests to the rest of the world. Ultimately, however, a consensus was reached to the extent that SDG 16 was based on existing international criminal justice and human rights norms and standards, which were already endorsed by a majority of Member States – at least in most instances. The role of key governmental, United Nations and civil society actors and “champions” toward this successful outcome cannot be understated.
Under SDG 16, a total of 12 targets and 23 indicators have been agreed upon by Member States of the United Nations. These targets cover a broad range of rule of law and security issues, based to a very large extent on existing international and regional criminal justice and human rights norms and standards.
Such targets include inter alia: a reduction in all forms of violence and related death rates; the promotion of the rule of law and access to justice; a reduction in corruption and bribery in all its forms; the development of effective, accountable and transparent institutions; and a reduction of illicit financial flows. Progress toward these targets is measured through specific indicators including: the intentional homicide rate; victimization reporting; the percentage of unsentenced detainees as a proportion of overall prison population; and the total value of inward and outward illicit financial flows.
Overall, this goal with the targets and indicators, and most critically their credibility and legitimacy, could assist a leader in creating the political space at the national level for reform. The leadership case for this goal could be advanced through a comparative analysis across countries that identifies incentives of local and national leaders for reform. For example, a survey that empirically links progress toward this rule of law goal with specific targets and indicators for economic development could generate interest from the economic elite and decisions makers in the concerned country. Similarly, this is a tool that could empower leaders for reform by providing clear, internationally recognized standards facilitating a focus on specific outcomes required for reform.
Best practices for leaders to advance the rule of law
From a leadership perspective, several approaches are of relevance for achieving SDG 16. As one author noted, “leadership for achieving sustainable development is rooted in a living processes paradigm, rather than a mechanistic paradigm” (Bahauddin, 2018). There are several parameters that are likely to inform this process, at different levels.
First, it is important for leaders to understand the fundamental political nature of rule of law reform. Through quantitative and qualitative analysis, it is important to have a situational awareness of issues at stake, including as to who are likely to benefit or lose from changes. The impact of such changes, both explicit and implied, should be assessed. Tools, such as the targets and indicators for SDG 16, in conjunction with an acute politic, economic and social analysis can have an indispensable role in this process.
Second, it is critical that progress be informed through an inclusive and collaborative approach. Given the nature of SDG 16, all branches of the Government – executive, legislative and judicial – as well as civil society and the private sector should be involved. At the same time, a leader should take measures to isolate potential spoilers and build broad alliances in support of these outcomes. Planning against all foreseen contingencies, both in the short and long term, is critical in this regard.
Third, a leader should take an incremental approach toward the achievement of these goals. Political space may allow, for example, for measures for building up the capacity and integrity of law enforcement institutions, but not the justice system overall. Momentum can be built through progress in specific sectors as a model for other rule of law areas.
Fourth, leaders should recognize that resource allocation is key. Achieving rule of law reforms, and the targets set forth in SDG 16, requires an investment in human and financial capital from the State. A leader should be in a position to build the constituency required to approve and implement the national budgetary requirements for this purpose. Without adequate salaries and other emoluments for judges and prosecutors, there cannot be any meaningful rule of law reform. Ultimately, a leader needs to be an effective resource mobilizer.
Fifth, it is important to have a clear vision on the way ahead, at the highest level of the State. This is a paramount consideration and the foundation for any sustainable outcomes. Such a vision should be instilled through clear practical messaging, that can be understood by all, and monitored against selected indicators of progress. Here, again, the indicators for SDG 16 could have an indispensable role.
Overall, leading change should be one of mindset at the most profound level. This is perhaps the most difficult challenge, to the extent that a culture shift toward respect for the rule of law is required. This should be informed and adjusted based on circumstances, taking into account the imperative necessity of flexibility requires for means while never losing sight of the objectives.
Leadership is a condition sine qua non for the establishment of the rule of law in conflict and post-conflict societies. This leadership is, in turn, inevitably exercised in very challenging circumstances characterized by volatility, uncertainty, complexity and ambiguity. SDG 16 can be an important platform for a national leader to create the political space for reform to take place in the midst of competing interests. Critically, it is a tool grounded in international norms which provides unique credibility and legitimacy for reform and measuring progress. As such, it can act as a critical leverage to increase security and justice state capacities and access to justice and contribute to sustainable peace and security.
Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, February 15, 2013, S/2013/96, Paragraph 51.
Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, June 30, 2014, S/2014/450, Paragraphs 72 and 93.
See, in particular: Human Rights Watch, Justice on Trial: Lessons from the Minova Rape Case in the Democratic Republic of Congo, October 1, 2015.
The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, August 23, 2004, S/2004/616*, Paragraph 6.
Kosovo had an intentional homicide rate of 1.6 per 100,000 in 2016. This compares favorably to Canada (rate of 1.68), Belgium (rate of 1.95) and the USA (rate of 1.95). Data available at: United Nations Office on Drugs and Crime, Survey of Crime Trends and Operations of Criminal Justice Systems, 2016. The intentional homicide rate is generally considered as one of the most, if the most, critical indicators to evaluate the general level of peace and security in a given society.
See for example: European Commission (2018).
This confidence rate stands at less than 40 percent since surveys were initiated in 2007. See: UNDP and USAID (2017).
Report on implementation of the United Nations Rule of Law Indicators in Haiti (September–October 2011), as issued in February 2013, p. 19.
As a regional comparison, 56.5 percent of the detainees in the Dominican Republic (in May 2015) and 16.9 percent in Jamaica (in December 2013) were held in pre-trial or remand. World Prison Brief, www.prisonstudies.org.
It should be noted that the Ministry of Justice and Public Security does not have reliable figures on the exact number of judges and prosecutors, as well as other judicial staff, that are effectively in place.
General Assembly resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, October 21, 2015.
General Assembly resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, October 21, 2015, p. 2.
General Assembly resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, October 21, 2015, p. 14.
Note by the Secretary-General, Report of the Inter-Agency and Expert Group on Sustainable Development Goal Indicators, E/CN.3/2016/2/Rev.1*, dated February 19, 2016.
“Gouverner c’est choisir” – A statement attributed to Pierre-Mendès France, French Prime Minister from 1954 to 1955.
Bahauddin, K.Md. (2018), The Essence of Leadership for Achieving the Sustainable Development Goals, SDG Knowledge Hub.
Diamond, J. (2012), The World Until Yesterday, Penguin Books, pp. 109-110.
European Commission (2018), “Kosovo 2018 report”, April 17, pp. 13-20.
Ferro, M. (2008), Le Ressentiment dans l’histoire, English language version, Resentment in History, Editions Odile Jacob, 2010.
Hartley, J. (2018), “Ten propositions about public leadership”, International Journal of Public Leadership, Vol. 14 No. 4, pp. 204-217.
UNDP and USAID (2017), “Public pulse brief 12 for January 2017”, UNDP, Pristina, January.