rule of law roundtable: towards best practice in post-conflict situations

RULE OF LAW ROUNDTABLE: TOWARDS BEST PRACTICE IN POST-

CONFLICT SITUATIONS

25 – 28 October 2010 Queanbeyan, NSW

Roundtable Report

ROL ROUNDTABLE 25-28 OCTOBER 2010 REPORT

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“It is by reintroducing the rule of law, and confidence in its impartial application, that we can hope to resuscitate societies shattered by conflict”1

1 Former United Nations Secretary General Kofi Annan at the opening of the fifty-ninth session of the United Nations General Assembly, 2004.


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CONTENTS

Foreword

Context

1. Introduction

2. Criminal Justice Sector

2.1 Police

2.2 Courts and Prosecutions

2.3 Correctional Institutions

2.4 Customary Justice Systems

3. Security Sector Reform

4. Transitional Justice

5. Whole-of-Government Approaches

5.1 The Australian Approach

5.2 Whole-of-Government in Practice

6. Conclusions

6.1 Government-only Roundtable


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FOREWORD

The Asia Pacific Civil-Military Centre of Excellence convened the Rule of Law Roundtable: Towards Best Practice in Post-Conflict Situations from 25-28 October 2011. The Roundtable was convened with the aim of strengthening Australia’s multiagency approach and capabilities for conflict management offshore in this field. The central theme of the Roundtable was civil-military-police cooperation and coordination on rule of law issues during the early stages of the post-conflict period. The proposal for the Roundtable was developed in consultation with relevant whole-of-government officials with responsibilities for Australian responses in post-conflict situations. The Roundtable was considered particularly timely due to the establishment of new Australian Government capacity in this area including the Australian Civilian Corps, the National Security College and the Centre itself.

The Roundtable had five sessions: best practice in post-conflict situations; criminal justice sector; security sector reform; transitional justice and whole-of-government approaches. In each session a number of presentations were made by subject-matter experts, which then informed and prompted discussion. The Roundtable then concluded with a Government officials-only session to discuss the implications of the Roundtable for the Government.

The Roundtable created a ‘space’ for international rule of law experts and practitioners with a select group of Australian Government officials to discuss best (or better) practice in re-establishing the Rule of Law in post-conflict environments. What emerged was greater clarity concerning the various responsibilities of different agencies and actors in the field together with a greater appreciation of the interconnectedness of the issues and the need to continue to work to develop our expertise in this area.

This Report provides a summary of key issues discussed at the Roundtable and includes research material to give a holistic report on the state of the art for rule of law It is a blend of research material, content from Roundtable presentations and comments made by participants during discussion time under. The Roundtable was conduicted under the Chatham House Rule.

The Centre was delighted by the high level and active participation at the Roundtable. I would like to acknowledge the outstanding contribution made by Dr Vivienne O’Connor, Senior Rule of Law Adviser in the United States Institution of Peace’s Rule of Law Program who agreed to co-facilitate the Roundtable. I would like to thank all those who took part and especially the presenters. Additionally, I would especially like to thank Ms Rachel Wallbridge for her work behind the scenes organising the Roundtable and in preparing and researching this Report.

Peter Thomson Governance and Rule of Law Program manager Asia Pacific Civil-Military Centre of Excellence


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Roundtable Official Photograph: 26 October 2010

The Roundtable at work


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SESSION ONE: GROUND SETTING

In the opening session of the Roundtable, facilitators Mr Peter Thomson and Dr Vivienne O’Connor established the scope for discussion, outlining initial issues for consideration and canvassed recent developments in the rule of law (ROL) space. The need to share best practice between actors involved in ROL work and the need for a coherent framework for exercising ROL became an underlying theme of the Roundtable.

The following framework was put forward to frame the Roundtable and working groups. During discussions, participants were encouraged to:

• identify gaps in policy and programming;

• identify future research priorities;

• identify ways to improve cross-government coordination; and

• capture best practice/lessons learned.

The importance of moving beyond identifying issues and problems towards developing effective ROL solutions was stressed as a key condition of successful Roundtable discussions. In addition, the need for evidence-based approaches to ROL projects (including mapping the existing system) was highlighted, noting that it requires a multi-disciplinary approach.

The delivery of vital services such as justice and security are crucial functions of an effective state. Essential to this process is the ROL. While there is a diverse understanding amongst practitioners of the definition of ROL, it can be summarised as the way in which individuals and government obey and are regulated by domestic or international law.2

The diverse understanding of ROL was reflected in Roundtable discussions. One participant defined ROL as security + justice = ROL. Another argued that any ROL definition can be critiqued for being either too inclusive or if a broader definition is taken, for having a lack of clarity. Yet another participant noted that conflict is not a linear process and when and at what point a society moves from conflict into a post-conflict environment is often contested. In this Report, the following definition widely used in the UN Secretariat is adopted.

2 The UN Secretary-General defines ROL as ‘...a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publically promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, 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.’ Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004 (S/2004/616).


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One participant stressed that Australia needs to be realistic and focused about what is achievable in terms of ROL in post-conflict societies. In the short term, it will be about restoring the coercive power of the State, balanced with constraints. Until consent is earned from the community, ROL will always be fragile.

Building or re-establishing the ROL in a post-conflict environment is a difficult, complex and inherently political task. Because conflict is rooted in political dynamics, understanding the local context and finding solutions that are tailored to the local community is crucial to the success of a ROL program. As one participant emphasised, it is important to have a strategy for engaging with the local community and non-government sector right from the beginning.

SESSION TWO: CRIMINAL JUSTICE SECTOR

Often the most pressing challenge facing a post-conflict justice system is the overwhelming prevalence of criminal conduct. Attempts to build a strong criminal justice sector, while vital to ongoing peace, is a difficult and time consuming task. The physical infrastructure of the system may be damaged or destroyed. Criminal justice actors may have fled the country during the conflict, leaving a dearth of personnel. If there are justice actors remaining, they may have been complicit in human rights violations or may lack the basic capacity to carry out their job. Another challenge is the sheer enormity of the task at hand and the length of time it can take to see measurable, positive change in the criminal system.

In the mid-to-long-term, criminal justice reforms have focused on police services, the judicial system, penal institutions, prosecutions and criminal defence lawyers. These institutions are often broken and dysfunctional after years of conflict and consequently there is a long list of general reforms necessary.

Participants emphasised that reform of the criminal justice system should be holistic and cover all sectors. For example, international police can arrest criminals, but if there are ineffective courts or penal institutions, this can create potential human rights issues, with suspects languishing in custody in substandard conditions for unreasonable periods of time awaiting trial. In addition, reform must be sustainable and supportable by the host State’s human resource capacity, as creating a criminal justice system that is not affordable in the long term is problematic.

In the criminal justice session there were presentations and discussions about policing, prosecutions and defence, legal criminal code reform and correctional institutions within the Pacific context, as well as discussion about the complex challenges of non-state and customary justice systems.


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2.1 Police

The first contact an offender or a victim has with the criminal justice system is usually with the police. In many post-conflict countries, the local community’s experience with the police is negative and in some instances, it may have been used as a coercive instrument in an abusive or fragile government. The concept of service-oriented policing may be far from most people’s experience.

Types of assistance measures for post-conflict police forces typically include:

• providing infrastructure and basic resources;

• organising governance reform and leadership development;

• reforming police laws, rules, regulations and procedures;

• reforming the system for appointing, disciplining and vetting police;

• policing capacity building and training that includes human rights training;

• developing police-community partnerships/fora; and

• separating or de-associating the police from the military.

One participant suggested that finding the most appropriate policy options for the specific intervention context was the most important step in police reform. As one Roundtable presentation canvassed, attempts to recreate best practice policing models regardless of context will inevitably fail, as the ROL experiences of well-performing countries cannot be automatically transferred to those that are not performing well. In addition, the reform of the police service should be gradual and be in line with political and social transition. This point not only applies to policing, but is relevant to all ROL programs.

Another participant observed that the Regional Assistance Mission to the Solomon Islands, RAMSI, illustrates the importance of planning assistance based on the local environment and context. The geography of the Solomon Islands means that the police force is essentially a maritime organisation and extra maritime capacity within this context is essential. RAMSI still faces major challenges today including corruption, unfinished trials, and most crucially limited employment opportunities, in both the formal or informal economy and particularly for young men.

In Practice: Police Procedure

One participant expressed the view that in a post-conflict state in the Pacific, several high-profile alleged criminal offenders had their cases dismissed because the police had failed to caution them when they were arrested.

Many matters are dismissed due to poorly prepared briefs or failure to comply with procedural rules for the gathering and admissibility of evidence.


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During the Roundtable discussion a number of points in relation to policing were emphasised, including:

• when consulting on criminal justice reform, the process should go beyond the host government to the non-government sector and the wider community;

• within the local community there is a need to encourage a sense of what is an appropriate use of power so that they can demand better governance;

• missions may need to be ‘reset’ and strategy revised based on changes on the ground (for example, in the Solomon Islands, the election of the new Prime Minister was significant); and

• the need to plan for transition and to build local ownership from the beginning phases.

2.2 Courts and Prosecutions

In the course of conflict court buildings may have been destroyed or damaged and basic resources may have been looted. However, the non-existence of basic infrastructure is not the only problem or even the major problem in re-establishing the court system. The pre-existing court system may have been ineffective, remote, slow and costly. On occasion court staff may have been implicated in human rights abuses or may lack the capacity to do their jobs effectively. In addition, there may be high levels of corruption, courts may lack independence and the population may see the courts as illegitimate and inaccessible.

In relation to prosecutions, Roundtable discussion focused on the following issues:

• the need for to be adequate recognition not only of the prosecutor’s role, but also the critical role that defence lawyers play in the orderly working of the legal system;

• the incidental flow-on effect of criminal justice sector reform on the civil justice sphere (for example, in the Solomon Islands there was an unexpected increase in women seeking maintenance orders, or those seeking payment of debts because of new found confidence in the legal system);

In Practice: Prosecutor Training

A participant who works in the Pacific noted that one of the biggest challenges involves attracting, training and retaining prosecutors within the formal justice system. A lack of experienced or trained prosecutors means that cases are delayed and some prosecutions fail. This can in turn lend to frustration and further insecurity.


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• the intervention program supporting customary justice initiatives need to address some of the human rights and gender inequality issues (for example, in the Solomon Islands the customary justice system is male dominated);

• what, if anything, can an intervention achieve in the immediate to short-term and how to engage local actors to lead the development and reform process in the longer term;

• the urgency and availability of resources (including human resources) will often drive the composition of the international deployment team in the first stage; and

• sustainability and the need to consider whether structure and reform processes are sustainable in the country over the long term before implementing those changes.

2.3 Correctional Institutions

Typically the corrections system in a post-conflict state, where prisons have not been destroyed by war, are dilapidated and run down. Post-conflict prisons are generally overcrowded, mostly with individuals who have not yet been tried. These conditions represent a threat to the health of detainees and to the community at large. The number of suspects remaining in prison correlates to the judiciary’s capacity to try cases expeditiously. Often, those suspected of petty crimes may have been there for longer than the maximum sentence for the alleged crimes. Another common problem is that prison records may not exist and therefore it may not be clear how many people are in detention or whether they are there legally.

Compounding these problems, prison staff may have committed human rights abuses during the conflict or may not have the capacity to run prisons in a manner consistent with international standards. Unfortunately correctional institution reform is often not prioritised and is often underfunded.

In Practice: Prosecutions in the Solomon Islands

One participant observed that after the breakdown of the legal system in the Solomon Islands, there was a lack of public confidence in the justice system, which needed to be restored. One of the key challenges was that most of the criminal cases were being prosecuted by police prosecutors who arguably lacked appropriate training and education. This led to mistrials and the inefficient operation of the legal system.


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Again the Roundtable noted the sustainability of correctional reform as a key issue, particularly if host government investment in this area is limited and/or where donor money is expected to decrease over time.

2.4 Customary Justice Systems3

Most people in post-conflict states access dispute resolution other than through the formal justice system. For years international ROL practitioners largely ignored informal systems, often because of a lack of understanding of them and instead focused exclusively on the Western-style formal justice system and its reform.

More recently however, the international community has realised that these customary or informal systems matter and that they need to be understood and worked with as part of efforts to promote the ROL. Some justify engagement with these systems from a strategic perspective, arguing that where formal justice mechanisms may have disappeared due to conflict, customary justice systems may be crucial to ensuring immediate dispute resolution and law and order. Others justify engagement on the basis that despite their flaws, they are often the preferred and most locally trusted means of justice delivery in post-conflict states and should be prioritized on the basis of national perspectives and preferences. For the

3 Customary justice systems can be defined as “community-based social regulation and dispute resolution practices that are distinct from, even if influenced by and intertwined with, the state sponsored western-style justice system. The term encompasses a vast array of practices that vary from community to community and is not meant to imply a single, uniform system. Yet what they generally have in common is their origin in longstanding localized social structures, which greatly inform their notions of justice”. Deborah H. Isser Ed., Customary Justice and the ROL in War-Torn Societies, United States Institute of Peace, Forthcoming.

In Practice: Prison Reform in the Solomon Islands

A Roundtable participant noted that before RAMSI, the corrections system had physically collapsed. There were weak corporate structures, outdated legislation and ethnic favouritism. Now, the system meets UN minimum standards and the governing prison administration legislation is consistent with international law. Some of the key elements that contributed to the success of the reforms included the small scale of the penal system, advisors placed in value-add areas, rigorous planning, focus on outcomes not processes, rapid increase in budget and funding by the Solomon Islands Government, culturally appropriate legislation and staff discipline. In addition, there was an active strategy to work with the community and the media, and to develop good relationships with the relevant Ministers.


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local population they represent a cost-effective, accessible and reliable form of dispute resolution.4

It was noted during the Rountable that that formal and customary justice systems often overlap and problems around gender inequality and treatment of juveniles exist across both the state and non-State systems within the Pacific region. Generally there needs to be focused and appropriately balanced support to reform and development in both systems. However, making funds available for informal justice systems does have some degree of risk, as unintended consequences can result.

To finish up day two of the program, Roundtable participants broke into smaller groups for more detailed discussions about the different aspects of the criminal justice system. These discussions identified the importance of:

• forward planning, benchmarking, assessing results and understanding what is sustainable in the long term;

• understanding local context in program design. For example, in order to be effective, lawyers deployed in international ROL interventions need to understand the existing legal structure;

• achieving realistic timeframes for ROL programs in relation to different time frames and local political conditions;

• planning of interventions before arrival is important, but may not always be feasible to the desirable degree;

• planning must be robust yet flexible and able to be reviewed and adapted to conditions on the ground;

• positioning the right people for the job and properly preparing advisors for work in often difficult physical environments;

• having advisors with country expertise as well as subject matter expertise; and

• recruiting locally but realising that retention can be difficult without addressing workplace conditions and workforce planning and management.

4 However, it should be noted that often an informal justice system may be gendered, show serious defects towards juvenile’s rights and exercise forms of punishment that are prohibited under international law. Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Mapping the Justice Sector, United Nations, 2006, 14.

In Practice: Informal versus formal justice systems

One participant shared with the Roundtable that after a two year study in Liberia, the community made it clear that not only do locals prefer informal justice systems, but that even if the formal justice system was adequately functioning; they would still choose to not use it.


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SESSION THREE: SECURITY SECTOR REFORM

Security Sector Reform (SSR) is a critical element of ROL reform.5 SSR provides far greater control and accountability by civil authorities, including parliamentary oversight, of military, police and institutions. The breadth and scope of SSR is largely undefined. Discrepancies and different interpretations of what the term means, both in theory and in practice, remains unresolved within the international community.

One of the ways to describe SSR is to clarify what is meant by the term security sector. Security sector refers to the structures, institutions and personnel responsible for the management, provision and oversight of security in a country.6 In terms of what security means, it depends on whether a narrow or broad definition is adopted (see Diagram 1).

In the Roundtable, a presentation outlined a recent publication by the Pacific Centre of the United Nations Development Programme and the Pacific Islands Forum Secretariat: Enhancing Security Sector Governance in the Pacific Region – A Strategic Framework. The publication focuses on the need for a new strategic framework in the Pacific, which will complement existing reform and capacity building efforts of police, military, and customs and immigration agencies and will result in greater accountability and legitimacy of security institutions. The publication is intended to support regional and national stakeholders to develop appropriate policies and programming.

5 The 2008 Report of the Secretary General describes SSR as “a process of assessment, review and implementation as well as monitoring and evaluation led by national authorities that has as its goal the enhancement of effective and accountable security for the State and its peoples without discrimination and with full respect for human rights and the ROL”. Report of the Secretary General, Securing Peace and Development: Role of the Security Council in Supporting Security Sector Reform, UN Doc A/62/659 - S/2008/392, 3 January 2008. 6 Report of the Secretary General, Securing Peace and Development: Role of the Security Council in Supporting Security Sector Reform, UN Doc A/62/659 - S/2008/392, 3 January 2008, 5.


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Diagram 1 Narrow to Broad Approaches

The ‘Security Sector’

Source: Internally produced by the Asia Pacific Civil-Military Centre of Excellence

As SSR is politically sensitive, there was discussion at the Roundtable over the need for ‘demand’ by the host State. A key question is where demand for reform should come from, as in most post-conflict settings there will never be whole-of-government consensus from the host state on the need for reform. This is because some people are set to loose and some set to gain from any changes. The Roundtable then noted after issues of demand and consent have been considered other difficult issues arise, such as:

• deciding who to engage with and how;

• sequencing;

• identifying appropriate entry points, particularly as conditions will never be perfect in order to create momentum for change; and

human rights commissions and ombudsmen

coast and border guards

electoral system

ministries of defence, internal affairs and foreign

affairs

financial management

institutions and bodies

private security services

the executive, legislative bodies, national security advisory bodies, armed force, police, presidential

guards, corrections, judiciary, intelligence services, reserve or

local security units

Institutions responsible for broader management of core sectors

customs

civil emergency bodies

civil society– NGO’s, media,

think tanks

immigration


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• having donor countries be clear and honest about their own interests and objectives, as it is difficult to have genuine consultations when donor’s own strategic objectives and interests are not transparent.

The Roundtable flagged the interaction of customary justice systems and SSR as a potential area for future research. One participant commented that a state monopoly over the provision of security is not a reality in many environments. There is a need for pragmatic solutions that are not only based on our idea of what the legitimate functions for the State are, but the idea of the local community.

In addition, SSR often plays out in a gendered way. One participant suggested that any support to SSR should give greater recognition to the importance of gender mainstreaming and women’s participation in discussions and reform process should be encouraged.7

In regards to security sector reform, the Roundtable agreed on the following points:8

• security is not SSR;

• SSR is a ‘political’ process;

• SSR is primarily about capacity building;

• SSR should be part of wider public sector reform;

• SSR is often excluded from national strategies as a result of aid bias because some aspects of SSR are not seen as eligible for Official Development Assistance;

• SSR should focus not only on the military, but also on the police, intelligence sector

and non-state security providers (and how to integrate them in the SSR process noting the difference between non-State providers contracted by the State and other groups who operate in the space illegitimately, such as militias);

7 See also S/RES 1325 (2000), S/RES 1820 (2008), S/RES 1888 (2009), S/RES 1889 (2009). 8 Points adapted from Karene Melloul, Accidental Partners? Listening to the Australian Defence and Police Experience in Conflict-Affected and Fragile State, April 2010.

In Practice: Creating the Pacific’s SSR Strategic Framework

In 2008, the Pacific Islands Forum Secretariat and the UN Development Programme commenced a joint initiative to deal with security sector governance challenges in the Pacific. High level discussions were held with key stakeholders in five target countries. These missions were supported by the Geneva Centre for the Democratic Control of Armed Forces (DCAF). In April 2009, they convened a Regional Conference on Security Sector Governance in the Pacific in Tonga to review the key findings and priorities identified in the scoping missions. In 2010, PIFS and UNDP published “Enhancing Security Sector Governance in the Pacific Region – A Strategic Framework”.


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• SSR can have unpredictable consequences because there are many complex factors at play, such as political power, that can affect the end result of the SSR program; and

• SSR needs to ensure reform of the security sector is matched and complemented by strong democratic institutions (see Diagram 1).

SESSION FOUR: TRANSITIONAL JUSTICE

Transitional justice mechanisms are extraordinary in their nature as they encompass a wide range of judicial and non-judicial responses adapted to the particular context of post-conflict societies.9 These responses need to take into account the challenges of dealing with a legacy of mass-scale violations. They go beyond traditional mechanisms of the justice system and adopt a much wider view of how a state can best implement laws, programmes and policies which allow the state to transition fully to a sustainable peace based on the ROL.

Transitional justice frameworks are usually developed in times and places where experiences of conflict or recent repression are raw. The inherent complexity that this brings is particularly acute when the host government (and its bureaucracy) may be tainted by the role it played in the conflict. For example, when those with alleged responsibility remain in power. This makes approaching and implementing transitional justice not only sensitive, but also highly political. The International Criminal Court (ICC) represents an important development in bringing perpetrators of international crimes to justice. Given its scope and acceptance, it represents a major breakthrough in international law. Blanket amnesties are unacceptable and immunity from prosecution as part of a peace deal will not stand for member states that have ratified the Rome Statute on the ICC. The Roundtable discussed the jurisdiction of the ICC in relation to states that have not ratified the Rome Statute. In doing so it was noted that the greatest challenge to the effectiveness of the ICC is the lack of systematic application of international law by States.

There are two dilemmas of transitional justice: how to pursue transitional justice without neglecting regular justice mechanisms; and how to reconcile coming to terms with crimes committed during conflict without compromising the future development of the post-conflict community. Finding this balance is a difficult challenge in many post-conflict settings, as calls for justice and calls for peace are sometimes said to be contradictory.

9 Transitional Justice can be defined as the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General, UN DOC. S/2004/616 (23 August 2004) at para.


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However, the community emphasis in most transitional justice discussions is how to accommodate both justice and peace. In addition, investigation of abuses should be carried out in a coordinated way and in a manner that maximises the use of evidence for formal processes in a way that avoids witness retraumatisation and fatigue.

The primary objectives of transitional justice include:

• bringing to account those responsible for past abuses;

• providing reparation to victims;

• implementing the type of institutional reform necessary to prevent future abuses, and re-building civic trust in public institutions;

• encouraging reconciliation and consolidate peace,; and

• promoting the ROL.

After presentations on transitional justice, the Roundtable discussed key issues including:

• the real risks of embarking on these processes where there is ambivalence by the donor and/or host states;

• the way in which transitional justice is context specific and must be tailored to the community seeking it;

• the interaction of informal and formal justice systems as part of transitional justice;

• the questions over the benefit of truth telling and how it may not be culturally appropriate in all circumstances;

• the relative cost of transitional justice and trade-offs with other kinds of post-conflict assistance and priorities; and

• the need for a clearer whole-of-government dialogue on Australia’s approach to transitional justice.

In Practice: Transitional Justice and the Formal Court System

One participant shared the view that in the Solomons, a RAMSI mission Case Support Unit was developed to deal with the backlog of tension trials that was causing delay in the mainstream court system. While the program resourcing was unsustainable in the long term, it did provide immediate relief to the overworked formal justice system and in doing so, helped build local capacity.


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In Practice: Transitional Justice in Timor Leste

After the violence and the Independence Referendum in 1999, there were strong calls for justice in Timor Leste. The first response was the creation of specialised investigation and prosecution mechanism for the prosecution of those responsible for international crimes, as well as murder and sexual assaults. There was also discussion focused on a potential truth and reconciliation institution. A steering committee was set up that then consulted in 13 districts across Timor Leste to ask communities what they expected of a truth and reconciliation commission. As a result, the community made it clear that they did not want amnesties for serious crimes, they wanted formal criminal prosecutions, but that a truth and reconciliation commission could help reveal the pattern of abuses, recommend actions to avoid further violations and undertake community based reconciliation of those responsible for less serious crimes.

A number of lessons learned were identified from the transitional justice program in Timor Leste. Community consultation is vital with respect to shaping appropriate transitional justice mechanisms. It is desirable that one form of transitional justice not undercut another, but be looked upon as complementary. In relation to prosecution efforts, it is important to promote equality of resources between the prosecution and defence, and to ensure adequate non-legal support, such as translation services and witness protection programs for those who choose to give evidence. In addition, monitoring processes should also be institutionalised. International assistance can play a key role in supporting transitional justice mechanisms, and can draw upon relevant norms of international law (eg in relation to amnesties) and tools (eg OHCHR ROL Tools).


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SESSION FIVE: WHOLE-OF-GOVERNMENT APPROACHES

The rationale behind a national whole-of-government approach to ROL programs in post-conflict settings is greater efficiency and effectiveness. It is driven by the assumption that a government’s foreign engagements will have a more meaningful and sustainable impact when government departments and agencies pursue a common strategy, have a shared understanding of the problem, a common theory of change, and an agreed plan for implementing such a strategy.

5.1 The Australian Approach

Over the past decade, Australia has been progressively strengthening its multiagency approach and capabilities for conflict and disaster management offshore. A key benefit of the Roundtable was sharing information about the role that new government institutions have in the ROL space. The information provided below is derived from presentations by the National Security College, AusAID, Department of Defence, Attorney-General’s Department, Department of Foreign Affairs and Trade, Australian Federal Police and the Asia Pacific Civil-Military Centre of Excellence. It was stressed and re-iterated several times those Australian Government agencies and departments need to work together at every stage of Australia’s engagement with fragile States, starting from the pre-conflict stage.

Department of Prime Minister and Cabinet (PM&C)

PM&C provides high-level strategic advice to the Prime Minister and the Cabinet on matters that are at the forefront of public and government administration. It is the central coordinating agency in the Commonwealth. Most relevantly, the International Division of PM&C provides advice, coordination and leadership on Australia’s foreign, trade, aid and treaty matters and priorities, including bilateral relations, relationships with regional and international organisations, free trade negotiations and whole-of-government priorities for the overseas aid program. It also incorporates the International Strategy Unit, which focuses on developing innovative and forward-looking advice on policy challenges in the medium to long term across the foreign and international security domains.10

10 <http://www.dpmc.gov.au/national_security/index.cfm> (25 October 2010)

In Practice: Whole-of-Government Approaches in RAMSI

There are formal coordination mechanisms for RAMSI (both in-country and in Australia) that have been complemented by informal coordination and consultation mechanisms with the host government, stakeholders, donors, non-government organisations and community groups. However, effective coordination in RAMSI is still arguably dependent upon on the interpersonal skills of the team.


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Department of Foreign Affairs and Trade (DFAT)

DFAT provides foreign and trade policy advice to the Government and advances the interests of Australia internationally. It also works with other Government agencies to ensure that Australia's pursuit of its global, regional and bilateral interests is coordinated effectively.11 DFAT is responsible for the Head of Mission (HOM)—Ambassador, High Commissioner and Consul-General or Permanent Representative. The HOM is Australia’s official representative overseas and is responsible for delivering a whole-of-government response on any issue. The HOM has oversight of all Australian government agency activities at overseas posts, not just those of DFAT.

Australian Agency for International Development (AusAID)

AusAID provides advice on international development policy and manages the planning and delivery of Australia’s overseas aid program. The objective of the aid program is to assist developing countries reduce poverty and achieve sustainable development, in line with Australia's national interest.12 AusAID contributes to Australia’s broader international economic, security and humanitarian objectives, with a particular focus on the Asia-Pacific region.

The Australian Civilian Corps (ACC), located within AusAID, enables the rapid deployment of trained civilian specialists that deploy to countries experiencing or emerging from disasters and conflicts. The ACC supports stabilisation, recovery and development planning. Civilian specialists are selected for their technical skills and ability to work in challenging overseas environments. They come from both the Australian public sector and the broader Australian community, and have a breadth of skills and experience.13 In relation to ROL activities in post-conflict settings, the ACC could provide policy advice on a legal framework and support stabilisation planning and delivery.

Department of Defence

The Department of Defence is responsible for the deployment of Australian Defence Force personnel to operations overseas and within Australia to protect Australia and its national interests, including UN mandated missions. In conflict situations and high threat overseas environments, Defence will play a leading role in Australia’s contribution to restoring peace and security. It is the initial and primary guarantor of physical security. More recently, the military can additionally take on mentoring and training roles. The Department of Defence can also provide military advice on the restoration and maintenance of security in post-conflict situations as well as situations of disaster response.

11 < http://www.dfat.gov.au/dept/index.html> (25 October 2010) 12 <http://ausaid.gov.au/about/default.cfm> (25 October 2010) 13 <http://www.ausaid.gov.au/acc/> (25 October 2010)


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Asia Pacific Civil-Military Centre of Excellence

The Asia Pacific Civil-Military Centre of Excellence is an Australian Government initiative to improve Australia’s effectiveness in multi-agency civil-military engagement for conflict and disaster management overseas. The Centre supports Government departments and agencies and engages with non-government organisations and international partners, including the UN, on civil-military issues to achieve focused outcomes for the region and globally.14

Attorney General’s Department (AGD)

AGD provides support to the government in the maintenance and improvement of Australia’s system of law and justice, as well as its national security and emergency management systems. In regards to overseas deployments, AGD provides legal and policy advice across government on issues involving public international law, including the legal basis for the deployment, the domestic laws of the host state, the application of international humanitarian law where applicable, and relevant human rights norms.

The International Legal Assistance Branch (ILAB) of AGD provides technical legal assistance to countries in the Asia-Pacific and Africa to build capacity to combat transnational crime and corruption, which threaten national and regional security. Our areas of legal expertise in transnational crime are people smuggling, human trafficking, terrorism and terrorist financing, money laundering and cybercrime laws. In the Pacific, we also deliver assistance with domestic criminal and policing legislation. ILAB is also responsible for overseeing Australia’s law and justice (non-policing) deployees to Papua New Guinea under the Strongim Gavman Program. Assistance programs are developed collaboratively with partner countries in South and South East Asia and the Pacific. In Africa, ILAB works primarily in collaboration with regional bodies and international organisations to deliver programs. The types of assistance ILAB offers include bilateral or multilateral training workshops, legal and policy advice on strengthening domestic laws, peer review of legislation, and assistance with drafting laws.

Australian Federal Police (AFP)

The AFP provides Australia’s international law enforcement and policing capacity, and is the Government’s chief source of advice on policing issues. The International Deployment Group (IDG) of the AFP contributes to the development, maintenance or restoration of the ROL in countries that seek Australia’s support, as well as to UN missions. It attempts to work within existing policing structures, working closely with local communities. The IDG

14 Asia Pacific Civil-Military Centre of Excellence, Strategic Plan 2009-2011, 1.


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currently has 350 members serving in overseas missions to Cyprus, Solomon Islands, Sudan, Timor-Leste, Nauru, Tonga, Vanuatu, Cambodia and Afghanistan.

The AFP Operational Response Group (ORG) falls under the function of the IDG and provides a high-end tactical and specialist policing capability to respond to instability and crisis within the region, as well as providing specialist support to AFP operations within Australia. The primary focus of this group is international offshore operations.

National Security College

The broad objectives of the National Security College are to enhance the understanding and critical thinking of security sector practitioners. It aims to help practitioners through shared professional experiences, academic rigour and cutting edge research. The College is about encouraging people to think through their assumptions and testing policy against different imagined futures. It will draw on the resources of the Government Agencies and Departments.

5.2 Whole of Government in Practice

There was discussion amongst Roundtable participants over what a whole-of-government approach means in practice. One participant noted that a whole-of-government approach is intended to harness the expertise and resources of all Government agencies and should not be limited to the Commonwealth Government. For example, state and territory governments have experience in areas such as corrections and prosecutions. It can also be argued that whole-of-government could take the phrase ‘whole-of-nation’, as the private sector and non-government organisations can also add value. However, it was noted by another participant that whole-of-government approaches should not always be assumed as the most effective or best way forward. There are many challenges and difficulties in exercising a whole-of-government approach in practice, including coordination being increasingly more difficult and demanding as more stakeholders are included within the process and at multiple levels (micro level to macro level including policy development and budgeting areas within multiple agencies).

During the Roundtable the following points were made by participants in regards to whole-of-government approaches to ROL programs in post-conflict situations:

• the government should have a clear idea of what it wants to achieve and the resources required;

• rule of law programs should have realistic timeframes and better defined expectations;

• there should be greater focus on breaking down structural barriers between agencies, which will require strong and high-level leadership; and


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• the Solomon Islands model provides a good example of the whole-of-government approach, but cannot be applied to every context.

CONCLUSIONS

The Roundtable brought together Australian Government Departments and Agencies responsible for designing and creating rule of programs in post-conflict settings. As a result of rich discussion and information sharing, key findings and conclusions have been identified:

• programs must be tailored to local cultural conditions and also be adaptable to change

• programs need to be based on realistic timeframes and expectations

• local ownership is critical

• all programs must be sustainable beyond donor contribution, and

• whole-of-government coordination requires continuing work, focus and prioritisation.

6.1 Government Only Session

At the conclusion of the Roundtable, a half day Government-only session convened to discussions the implications of the Roundtable for the Australian Government. Government delegates discussed ways to move the rule of law agenda forward within Departments and Agencies, as well as considering strategies to enhance future rule of law activities within the region.

The Asia Pacific Civil-Military Centre of Excellence will continue to support the development of the Australian Government’s post-conflict rule of law programming capabilities. A suite of future work programs working towards this objective have been identified and will be developed in the near future.

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