When violent conflicts have suspended the rule of law, foreign experts can help to rebuild the judicial system. But they can only be successful if they treat local partners as equals.
Be it Rwanda or Sudan, Bosnia or Guatemala - there are many fragmented countries where civil wars have torn apart society. They have to deal with their past and with who has bears responsibility and guilt for the past conflicts. As painful as it might be, it is a necessary process for countries to find their way to democracy, normality and stability. The efforts to move from a divided society to a new rule of justice are called "transitional justice," and it's hardly ever that states can manage the challenge themselves - lawyers from other countries though can often successfully assist in the process.
Transition to the rule of law
"The job of those lawyers is to ensure international standards are maintained and that trials are fairly conducted," said Rüdiger Wolfrum, lawyer with the International Tribunal for the law of the Sea and professor with the Max-Planck-Institute for international law. "In that respect it's a technical, scientific help."
Most experts are in favor of such support. "The countries have their own judicial systems but they need to be improved and have to be adjusted to the standards of the European Human Rights Convention," said Christian Tomuschat, professor for European and international law with Humboldt University Berlin.
There are different ways how to deal with the past, including a Truth and Reconciliation Commission as was created in South Africa.
"The commission had the possibility to grant amnesty. That means not everything was being investigated, the offenders had the chance to get amnesty if they gave a full confession," Tomuschat said.
Especially in Africa, an apology with the right words and at the right moment can play a big role to come to terms with the past. Another option is to sentence war criminals - as is the case for the former Yugoslavia. But in reality there often is a blend of those two options.
Importing foreign law?
"Those countries cannot do this on their own - the international expertise contributes to success, but only on one condition: and that is that we, the experts, not try to simply introduce our Western understanding of ethics and rule of law in those countries," Wolfrum said.
Foreign lawyers have to accept their partners as equals and understand the country's judicial tradition.
"In Mongolia, I've had a case where a US judge introduced American law although in Mongolia they have an entirely different judicial tradition - in fact modeled on the German model," Wolfrum explained. "To just export a judicial system in that manner is contra productive. The lawyers and judges of that country can't really handle this then."
Philip Weiner agreed. Until recently he was judge with the tribunal dealing with war crimes in Bosnia and Herzegovina. He has witnessed how the UN administration, the office of the High Representative for Bosnia and Herzegovina, has acted on the ground, "They have introduced elements of a completely new judicial system."
Before the 2003 reform, the judicial system in Bosnia was close the Roman system. This included fixed laws. Now the country has a judicial system that is a combination of established common law and Roman law.
"I don't know that the motives were to introduce common law into the Bosnian law. Maybe the consultants here came from the Anglo-Saxon tradition where this is more common," said Hilmo Vucinic, a judge with the war crimes tribunal for the former Yugoslavia.
In the UK, for instance, much of the practice of law is based on precedents set in earlier cases. While the new combination of different traditions might also have its benefits, the country now needs the help from foreign advisers, Weiner explained.
Vucinic said he sees the role of foreign lawyers as largely positive. While the communication might be difficult at times, the international lawyers still give the court added legitimacy. Decisions by local judges have often been criticized as biased and judges have also been attacked for having passed a sentenced considered too lenient. The judges from abroad though have changed how people see the work of the court.
"Most people have trust in what we do because we were not involved in the war," Weiner said. "That's why they accept our work as unbiased."
The international participation in Bosnia and Herzegovina is to run out by the end of the year. Local lawyers have a bulk of work ahead of them. Since the establishment of the court in 2002, 90 cases have been closed, 122 people have been sentenced. A lot has been achieved but a lot still needs to be done: Some 1,316 people are still to be put on trial.
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