Security Council meeting 5052-Resu.1

The President

In accordance with the understanding reached in the Council's prior consultations, I shall take it that the Security Council agrees to extend an invitation under rule 39 of its provisional rules of procedure to Mr. Mark Malloch Brown, Administrator of the United Nations Development Programme.

It is so decided.

I invite Mr. Malloch Brown to take a seat at the Council table.

The Council will now hear a briefing by Mr. Malloch Brown, to whom I give the floor.

Mr. Malloch Brown

For the United Nations Development Programme (UNDP), the rule of law has moved centre stage, particularly, of course, for the countries that we are discussing today -- those in crisis and in post-conflict situations. The rule of law is, after all, the indispensable platform for development. People and economies need rules if the sustained interactions that build societies are to take place.

But, if I may say so, the rule of law is too important to be left to lawyers. The rule of law must be rooted in the social and political context of a nation. It is an expression of the fundamental social contract arrived at when peace replaces war and people find the terms on which they can live together: minorities with majorities; losers with winners; women with men. Legitimacy, availability and accessibility govern the success of new laws in a post-conflict society. Do the laws meet the test of being adequately home-grown, or has somebody else's legal system been imported wholesale? Is there a court system able to restrain over-zealous police and military? Is there one that offers affordable, rapid redress to the emerging new small businessmen and women to encourage them to enter the formal economy by protecting their property rights, and indeed, giving them the very right to do honest business when warlords, crime and corruption are still rampant?

UNDP has been working on these issues throughout the world. Drawing on a very thorough recent review of our work in post-conflict and transitional countries -- the conclusions of which have helped to form and shape the collective thinking of the United Nations as outlined in the Secretary-General's report -- I would like to reiterate some of the key distilled lessons from our perspective.

Our starting point, as the Secretary-General made clear this morning, is that too often international assistance on the rule of law has ignored the link between the rule of law and politics. Assistance is often technocratic and apolitical in nature, focusing on the transfer of technical know-how to State institutions and on the technical modernization of institutions such as the courts and the police. In the first post-conflict stages, a policeman or policewoman in a neighbourhood often matters much more than a computer at the police station, but given violence and training issues, the first -- the bobby on the beat -- may be much harder to pull off.

Too often, rule-of-law assistance neglects the need to build consensus among national stakeholders on the type of reform needed. As a result, rule-of-law reforms, which we -- I think, like everybody else here -- consider to include the police and prison systems, can lack the necessary legitimacy to be truly effective in providing the platform for sustainable peace and development. Events in Haiti are one example of this. There, the failure was larger than a failure of laws, but the lack of local legitimacy in the new rule-of-law system, particularly with regard to the police, was one element in a broader crisis of institutions.

For that reason, we have found that international assistance needs to aim at building indigenous support for reform. Reform efforts rarely incorporate public participation in the design and implementation of projects. Crucially, most projects are implemented in consultation only with Governments, to the exclusion of civil society. Experience demonstrates that future United Nations assistance needs a component for public debate and must rely more on project proposals by local actors. The United Nations has an important role to play in facilitating negotiations among national stakeholders in order to build that political will for rule-of-law reform. The emphasis that the Secretary-General put on this point is very welcome.

All this work needs to take place in the context of a comprehensive approach. The rule of law is a system of interrelated institutions which cannot be considered separately: actions in any one impact on them all. However, we have found that rule-of-law assistance is often piecemeal and does not acknowledge these linkages. For example, assistance to El Salvador, Guatemala and Haiti in many ways viewed the public security sector separately from the judicial and correctional sectors. It is the failure to develop complementary reforms across sectors and institutions that has often resulted in conflict and lack of clarity on the roles of different institutions.

Despite that, however, cooperation among donors is too often the exception rather than the rule, resulting in a failure to accumulate information and lessons learned. For example, in Guatemala, a country of 10 million people and 419 judges, by 1996 there had already been more than 50 reports on various aspects of its judicial system, financed by 22 donors. In addition, donors have often engaged in overlapping or contradictory projects. In Nicaragua, more than 11 donors are involved in rule-of-law reform, often in overlapping projects. Given this predicament, it is vital that donors coordinate and accept direction from the recipient country when they evaluate a country's needs, develop a framework of assistance and implement the projects.

Less elevated, but at least as important practically, is the need for early, transparent commercial laws to be put in place. That brings business out of the informal sector and, by protecting property rights and transactions, allows a market economy to take shape and provides business owners with an environment in which they can develop and provide the growth, jobs and prosperity that are a vital emollient for the scars of conflict.

Clearly, throughout such efforts -- again as the Secretary-General said this morning -- issues of truth and reconciliation often risk overshadowing early justice development. But we do need to be cautious. There is a time and place for the matter of truth and reconciliation: too early retributive justice can undermine a fragile peace and the even more fragile trust between the former enemies on which it rests. Yet truth and justice postponed means hidden graves deep in the minds of men and women -- at least for the families of victims. And that can prevent a society from turning the page to a new era of peace.

More broadly, I would just like to add that we are working with the Secretariat to support electoral processes. I recognize that that is on the edge of the rule of law, but it is critically linked. This year alone, UNDP will have supported elections in 19 countries, including two weeks ago in Indonesia and this week in Afghanistan. Elections matter. They are the road from post-conflict to longer-term legitimacy and social consensus. Yet we have learned that if elections are premature and not placed within the process of building the rule of law, the electoral process is undermined. Then, rather than aiding the reconstruction and recovery process, weak State institutions can radicalize political discourse and exacerbate the difficult task of reaching agreements, building coalitions among national stakeholders and protecting minority rights.

Finally, I hope that within the United Nations system we are making good progress in pooling our expertise and resources to support the various rule-of-law aspects of peace operations. In Afghanistan, Iraq and Haiti, UNDP made available some of its own expert staff to advise the Special Representative of the Secretary-General on such rule-of-law issues. That has led to joint assessments, joint programming and joint resource mobilization, culminating in enhanced cooperation in the United Nations system to support national capacity-building for the rule of law.

Critical to the work and continued relevance of the United Nations in this area are the working partnerships between the Department of Political Affairs, the Department of Peacekeeping Operations, the Office of Legal Affairs, the Office of the High Commissioner for Human Rights, UNDP and others.

Recognizing the interdependence between the rule of law and development, and the social, political and economic context within which the rule of law must be rooted, it is clear that we owe it to the countries where we work and to ourselves to deliver the holistic approach to the rule of law that we preach to them.

The President

I thank Mr. Malloch Brown for his statement.

Moving forward, in order to optimize our time, I will not individually invite speakers to take seats at the Council table and then to resume their seats at the side of the Council Chamber. When a speaker is taking the floor, the Conference Officer will seat the next speaker on the list at the table.

I now give the floor to the representative of the Netherlands.

Mr. van den Berg (Netherlands)

Mr. President, I would like to thank you for joining us here in New York and for presiding over this important thematic debate in the Security Council.

I have the honour to speak on behalf of the European Union. The candidate countries Bulgaria, Romania, Turkey and Croatia, the countries of the Stabilization and Association Process and potential candidates Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia and Serbia and Montenegro, and the European Free Trade Association countries Iceland and Norway, members of the European Economic Area, align themselves with this declaration.

There is no peace without justice, and there is no justice without the rule of law. As the Secretary-General himself put it before the General Assembly in his speech on 21 September, the rule of law is indeed at risk. The fundamental principles of the rule of law are flouted not only by individuals, armed groups and terrorists, but also by Member States themselves. The European Union thanks the Secretary-General for his excellent and timely report (S/2004/616) and welcomes the vital importance that the Council attaches to work on justice and the rule of law.

The European Union is committed to an international order based on the rule of law, with the United Nations at its core. At the international level, all countries need a framework of fair rules and the confidence that others will obey them. The maintenance and promotion of the rule of law is an ever-present imperative.

In conflict and post-conflict societies, there are additional challenges to the rule of law: at the very moment when the need for justice is greatest, the legal structures necessary to deliver such justice may well be absent, sometimes due to the conflict, at other times when existing structures may have lost much of their credibility.

The European Union welcomes the conclusions and recommendations set out in the report of the Secretary-General and expresses its support for the inclusion of justice and rule of law elements in resolutions and mandates. We urge all States to endorse the entire set of recommendations set out in the report. We also strongly urge the United Nations Secretariat to take forward the recommendations in the report. The European Union would also welcome expert meetings on specific parts of the report in order to specify the necessary actions in concrete situations and any initiatives of Member States in this regard. Some, such as Finland, Germany and Jordan, have put forward thoughts on the organizational consequences for the Secretariat. These are also worth studying.

The European Union would like to point to the measures set out in paragraph 65 of the report, which include strengthening the capacity of the Secretariat. Adequate resources need to be secured for relevant departments, in particular the Department of Peacekeeping Operations, so as to respond to the increased United Nations involvement in this area. The European Union urges other Member States and international organizations to contribute national expertise and materials. The rule of law has been identified as one of four main priority fields within civilian aspects of the common European Union Security and Defence Policy.

In line with the report of the Secretary-General, the European Union recognizes the need to incorporate gender justice and gender sensitivity in all efforts and activities related to justice and the rule of law, as well as the need to ensure full participation of women.

The European Union welcomes the fact that the Secretary-General has listed some norms and standards for international assistance. Peace agreements endorsed by the United Nations, and Security Council resolutions and mandates, should never promise amnesties for genocide, war crimes or crimes against humanity. Also, the United Nations should never establish or directly participate in a tribunal that can impose capital punishment.

The European Union realizes that when the international community is called to intervene in conflict and post-conflict societies, there is no one-size-fits-all formula. Our strategies should take into account national cultures and traditions, as well as local structures and capabilities. We should work towards "locally owned" sustainable post-conflict structures with well-functioning justice systems, through which future disputes can be peacefully settled.

The European Union emphasizes the important role that criminal justice has to play in a society's efforts to come to terms with past abuses. We also recognize the need to give greater attention to meeting the needs of victims -- providing appropriate reparations for harm suffered. The European Union supports the full range of transitional justice mechanisms, as well as international efforts to end impunity for the most serious international crimes.

The most significant of these efforts is beyond doubt the International Criminal Court (ICC), which is now fully operational. The great advantage of the ICC compared with its predecessors is that it is readily available when the need arises. The European Union strongly believes that the Court will be an effective tool of the international community to buttress the rule of law and combat impunity. As the Secretary-General pointed out in his report, the Security Council has a particular role to play in this regard, as it is empowered to refer situations to the Court, even in cases where countries are not States parties to the Statute of the Court. The European Union shares the conviction of the Secretary-General that all States Members of the United Nations that have not yet done so should ratify the Rome Statute at the earliest possible opportunity.

The European Union notes the report's balanced appraisal of the lessons to be learned from the experience of the ad hoc international criminal tribunals. All these lessons have convinced the European Union even more of the importance of the establishment of the permanent International Criminal Court.

The assessment of contributions to both ad hoc Tribunals are determined by all and are to be paid by all in full and on time. We have learned that some are in considerable arrears, up to tens of millions of dollars, thus stifling the ongoing work at the Tribunals. Also, the European Union would like to draw attention to the Special Court for Sierra Leone, as well as to the future establishment of the so-called Khmer Rouge tribunals. We support the idea of financing partially those United Nations-sponsored efforts to assess contributions to the extent possible.

The European Union would support a request by the Security Council to the Secretary-General to keep the Council informed on progress in taking forward the recommendations set out in the report, and supports the Council's intention to consider this matter again within six months.

The President

I now give the floor to the representative of Australia.

Mr. Dauth (Australia)

Thank you, Mr. President, and welcome to New York. We want to thank the United Kingdom for convening this second open debate on justice and the rule of law, and we very much welcome the report of Secretary-General (S/2004/616), which will be a valuable tool in our collective efforts to achieve transitional justice and entrench the rule of law in States which have been torn apart by conflict.

As others have remarked, the report identifies valuable lessons learned, and articulates important recommendations for United Nations approaches to transitional justice and rule of law issues, which, as Mark Malloch Brown so wisely said, are too important to be left to lawyers. These issues include the need to assess existing capacity in a State emerging from conflict, the importance of developing comprehensive long-term approaches, the need to ensure that responses are tailored to the specific political, cultural and social characteristics of the State concerned, the importance of involving all domestic constituencies throughout the process, and the need to build national capacity.

Australia's long history of involvement in peacekeeping operations and other assistance missions confirms these lessons. Let me talk about some specific lessons learned by Australia in recent experience. These flesh out the sorts of general points which I thought Mark was making so eloquently in his helpful remarks.

The experience of the Australian-led Regional Assistance Mission to the Solomon Islands is particularly relevant for us and, I think, more generally. The reason for the request by the Government of the Solomon Islands for assistance was a fundamental breakdown in law and order in the very institutions of the State. It was only through restoring the rule of law that a durable peace could be achieved. In devising and implementing a regional response, Australia and Pacific Islands Forum partners worked closely with the people of the Solomon Islands to develop a comprehensive rule of law strategy. This included assessing the state of the Solomon Islands' justice system, providing assistance for the judiciary and to strengthen correctional services, and the deployment of 300 police from the region, who were authorized to use executive powers within the Solomon Islands to support the Royal Solomon Islands Police Force. The police were supported by a deployment of defence force personnel who assisted the deployment and provided additional support for police personnel. This strategy has now paid rich dividends with the arrest of a large number of alleged criminals and, importantly, the removal and destruction of small arms. Law and order have now been re-established, and peace and security restored in the Solomon Islands.

The experience of Timor-Leste also indicates the importance of long-term strategies to develop the rule of law. Successive United Nations missions have played an important role in the establishment of the rule of law in Timor-Leste, of course. As the Secretary-General's report notes, activities at the community level to achieve transitional justice and reconciliation -- including the work of the Commission for Reception, Truth and Reconciliation -- hold important lessons for the United Nations in devising, implementing and supporting rule of law strategies in the future.

The Secretary-General's report notes that a major obstacle to effectively addressing rule of law issues from the outset of a peace operation has been the fact that police are often too slowly deployed; frequently have insufficient mandates or skills; or, indeed, are in too short a supply, I think we need to note. To address that critical gap, Australia has created the International Deployment Group, a body consisting of 500 police available to participate in peace, capacity-building and stability missions. These police will be drawn from Australian police services and will have specialized training to equip them for such missions. Many of them will have previous experience in peace operations -- in the Solomon Islands and East Timor, for example. We urge other States to consider developing such mechanisms to ensure that trained civilian police are available to participate in peace operations.

The report also notes the importance of international institutions in supporting domestic efforts to deliver justice and entrench the rule of law. In that context, the establishment of the International Criminal Court was a highly significant development. The Court has an essential role to play in facilitating justice and accountability, particularly through the complementarity principle, which is a central feature, of course, of the Court's Statute.

As the Secretary-General's report notes, another recent approach to achieving transitional justice is the provision of international support for mixed institutions, such as in the case of Cambodia. Australia welcomes Cambodia's signature on 4 October of the agreement between Cambodia and the United Nations to establish an Extraordinary Chambers in Cambodia to try senior Khmer Rouge leaders. We remain committed to assisting this process and call on Cambodia and other States to join Australia in providing funding for the trials. That will enable justice to be done -- justice for which the people of Cambodia have been waiting for far too long.

Let me, in closing, note the forthcoming review by the Executive Committee on Peace and Security on matching resources with peacekeeping operations to facilitate the establishment of the rule of law and transitional justice. Australia will continue to follow that process closely.

The President

I now give the floor to the representative of Jordan.

Mr. Al-Hussein (Jordan)

We are grateful to you, Sir, for your spirited and able leadership on this vital issue, and we thank you most sincerely for having organized today's discussion, which affords us an opportunity to comment on the Secretary-General's report on the rule of law and transitional justice in conflict and post-conflict societies.

It is, from every angle, a very fine report -- one that we welcome most warmly. It is thoughtful throughout and very well written. In particular, my delegation appreciates the repeated references the report makes to the pivotal importance of common sense -- that those who plan for rule of law and transitional justice in conflict and post-conflict societies must be guided by those simple tenets of the obvious: listen to the local actors; know what is unique from what is not and therefore -- drawing from our shared historical experiences -- what is relevant to the circumstances in question from what is not; appreciate the broader picture when seizing on the details; and do all this before sequencing an approach, maintaining, always, a policy that is nimble and alive to changing conditions. We applaud that way of thinking and congratulate the Secretary-General on a very well produced, analytical report.

My delegation would very much like to offer three observations on the detail itself. The first relates to the refrain, found particularly in paragraphs 41 and 42 of the report, that the two ad hoc Tribunals are and have been expensive propositions -- the insinuation being, perhaps, that they have become too expensive and may not even worth it. Indeed, so often has that assertion of high cost been repeated in this Chamber in the context of the Tribunals that we can safely say it has now become almost a given to many Governments, as well as to the United Nations itself. But why?

In all honesty, my delegation is at a loss to know where this thinking comes from, and we believe that it needs to be thought through further. For a start, the International Criminal Tribunal for the Former Yugoslavia (ICTY) costs the United Nations membership, per year, close to $175 million, which, to my delegation's way of thinking, is a very reasonable amount. For $175 million is less than one twentieth of what the United Nations paid annually, during the war, to maintain its peacekeeping operation in the former Yugoslavia -- less than one twentieth. Put another way, the ICTY would have to continue operating until 2014 for its budget over the span of 20 years to measure up to what this Organization spent in one year alone -- 1994 -- on the operations of the United Nations Protection Force. And were it not for the ICTY, we can all be certain that the Dayton Peace Agreement would not have held in the form it has done for the past nine years. And so, if the alternative to justice and accountability is a likely return to a condition of general warfare, with all its familiar consequences, can the amounts already spent on the ICTY be construed as too great?

Much is often made by those who question the cost of the seeming absence of any impact the ongoing work of the ICTY has on the situation on the ground. And yet, we would argue, it is simply not necessary for the peoples of the former Yugoslavia to know what exact cases are now before the Court, who the defendants are, who is litigating or who is judging; or to know the judgements and the sentences; or even to understand the jurisprudence for there to exist a state of continuing peace. What is important is that the majority of people are aware that the Tribunal exists and that it functions properly -- that is, that those accused of bearing the greatest responsibility for the commission of the worst crimes are being prosecuted. And that is sufficient.

With the international community prepared to spend almost $1 trillion a year on weapons -- that historic companion of war -- how can we say that anything we have spent thus far on justice -- the surest companion of peace -- is too expensive? In short, we the international community clamour in an ad hoc manner for instant results when it comes to international criminal justice, and we insist that those results must be quantifiable, when the very systems of justice we seek to create aspire to much more than simply that. We suffer collectively from a very short memory. We tend to be thrifty when it comes to spending on law, and generous when it comes to spending on weapons.

Our second observation concerns the Secretary-General's conclusions and recommendations, which are found at the end of the report and with which we agree almost entirely. We would have liked to see, however, the inclusion, in the last portion of the report, of the Secretary-General's pertinent observations concerning the International Criminal Court and its significance, remarks found earlier in the report. With three more countries having acceded to the Rome Statute in recent days, bringing the total number of States parties to 97, the majority of Member States of the United Nations are now party to the Statute, and all of those were ratifications were concluded in only six years. That is by no means a small accomplishment.

Turning to the second portion of the recommendations, where they relate specifically to the United Nations system, we are pleased to join the delegation of Finland in attaching ourselves to the remarks made earlier by the Permanent Representative of Germany on what possible institutional changes could be considered by the Executive Committee on Peace and Security in the foreseeable future, as proposed in our joint non-paper. My delegation believes earnestly that if we wish ourselves and the United Nations a high measure of success in that area, it will ultimately only be attainable through the establishment of a dedicated rule-of-law department -- a field-oriented legal and judicial service.

Finally, it is important that the Security Council is hosting this second thematic debate on justice and the rule of law and the role of the United Nations, for it not only compliments well the priorities established by the Secretary-General in his speech before the General Assembly two weeks ago but also because it will, we hope, set the tone in the times ahead for the Council's own approach to the rule of law, the recognition of the law's primacy and the law's centrality to the maintenance of international peace and security. In the same vein, my delegation looks forward to the Council's upcoming consideration of the advisory opinion rendered recently by the United Nations highest judicial body, the International Court of Justice, in a matter known to everyone here that is also of substantial importance to my delegation. We hope that, when that time comes, the Council's actions will be consistent with its current reflections.

The President

I now give the floor to the representative of Finland.

Ms. Rasi (Finland)

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