Three Principles to Strengthen the Rule of Law

This September the United Nations Secretary General will convene what is called, in UN parlance, a "high level segment" of the General Assembly to discuss "the rule of law at the national and international levels." What does that mean? It’s not entirely clear. Nor is that surprising.

While "justice" is a series of aspirations for a better world, and "human rights" consists of internationally agreed and/or legally binding restraints on state power, "the rule of law" falls somewhere in between.

Lawyers and non-lawyers spend a lot of time discussing what the rule of law is. The definition the UN employs is quite a mouthful:

The term rule of law refers to a 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. 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.

Perhaps it is easier to see what the rule of law is not.

In recent weeks, we've seen three striking examples that illustrate the politicization of law.

In Spain, on January 17, Judge Baltasar Garzon, who has advanced the frontiers of justice abroad by prosecuting war criminals—like former Chilean dictator Augusto Pinochet and members of the former military junta in Argentina—went on trial for doing the same at home. Among other things, Garzon is accused of abusing his power in opening a case into the deaths of more than 100,000 people under the Franco regime. One need not be an expert in Spanish law to fear that a judge is being punished for displaying in Spain the very independence which won him praise elsewhere.

The same week, a court in Istanbul acquitted most of 19 defendants accused of involvement in the 2007 murder of Hrant Dink, a Turkish-Armenian newspaper editor who had provoked outrage in Turkey by labeling as “genocide” the 1915 massacres of 1.5 million Armenians by the Ottoman Turks. Before his death, Dink had been repeatedly prosecuted for expressing his opinion on matters deemed controversial. In 2005, he was given a six-month suspended prison sentence for "denigrating Turkishness" in writing about the identity of Turkish citizens of Armenian origin.  In 2010, the European Court of Human Rights held that the Turkish authorities had failed to act on information that could have prevented Dink's murder and to investigate the role of state officials in his death. Although the latest verdicts may be reviewed on appeal, the failure to secure justice for Dink’s killers sends a disturbing message about Turkey’s commitment to equal protection of the law for government supporters and dissidents alike.

Finally, just this week, the United States Department of Justice charged John Kiriakou, a former CIA officer, with disclosing classified information to journalists about the apprehension, interrogation and torture in 2002 of a suspected member of Al-Qaeda. This is the sixth criminal prosecution—more than all previous presidents since World War II—brought under President Obama against current or former government officials accused of providing classified information to the media. Rights advocates have expressed concern that this systematic effort to punish whistleblowers may silence others who have information about abuses, including those committed during the Bush Administration’s war on terror. Some suggest that is precisely the point—to hinder the search for criminal accountability.

Each of these examples highlights the danger, even in democracies with well-developed institutions, that political motivations may infect the judicial process in a manner which erodes impartiality and even-handedness. While misappropriation of the criminal law may seem to offer short-term gains to political actors, in the long run it undermines the legitimacy of government.

Taken together, these cases make clear, by its glaring absence, that one core component of the rule of law is the separation of law and politics. To give meaning to that principle, states might commit at the UN’s rule of law summit in September to the following:

First, effectively and thoroughly investigate all crimes, including—and indeed in particular—where there is reason to suspect the involvement of state officials.

Second, refrain from using the criminal process to punish anyone for political expression, or to infringe upon the principle of judicial independence.  Relatedly, do not prosecute judges for carrying out well founded investigations of politically sensitive crimes.

Third, provide effective legal protection for government whistleblowers who release information of public interest to the media or the public.

The mere restating of such common sense principles, in a public forum attended by senior dignitaries from around the world, would underscore their importance. Better yet, states might even agree to a process whereby, over the next several years, they would  articulate specific “stretch” commitments for each, with progress transparently monitored. That might make the High Level Segment this September worth following.

This is the second in an occasional series by the author looking at the issues facing this year's United Nations meeting on the rule of law.

7 Comments

Such clear lines of demarcation for the establishment of a sound rule of law indicate a comprehensive, radical change in thinking reminiscent of the Code of Hammurabi, the Magna Carta, and the Constitution and Bill of Rights of the United States.



I wonder if you realize the magnitude of this attitudinal precision vis-a-vis the *rule of law* -- which you seem to take in stride as a means to progress in the legal sphere.



Thank you for such succinct clarity in your presentation.

MOST OF THE DEMOCRATIC INSTITUTIONS IN THE DEVELOPING WORLD AND AFRICA OPERATE UNDER THE RULE OF MIGHT DESPITE DEMOCRATIC CONSTITUTIONS THAT PROCLAIM THE RULE OF LAW IN CLEAR TERMS. FOR THE UN TO RETURN TO THE BASICS OF THE RULE OF LAW IS TO REMIND THESE GOVERNMENTS OF THEIR MORAL RESPONSIBILITIES TO THE CITIZENRY.

The discussion of the rule of law in the UN should serve to remind the international community that the law and the state serve the individual and not the other way around. The law cannot be used to silence people but to empower them.

did mr. Goldstone read the sentence? Obviously not. Garzon wiretapped lawyers and defendants of an alledged corruption case against the opposition party. Garzon reasoning would destroy any chance of fair defense. I dont think in england might be acceptable to wiretappe defense strategy...

The UN General Assembly should realize that institutions responsible for the delivery of justice in post-conflict countries of the developing world operate in other way than most westerners are used to think of them . Other means than moral reminder should be used to make them act responsibly.

In much as the principle of the 'rule of law' is not a new debate but what makes it dicey is that states have been interpreting it differently to justify their own political decisions and agendas.

In repressive states, it is seen not to be the rule of law to express dessenting opion-sometimes made punishable by the penal codes of states.

The above scenario does not only happens in repressive regimes, but in notable democracies as well-the expression of communist ideas has more often been seen to be in violation of the rule of law in most western democracies punishable by law-'suppression of communist acts' passed by parliaments. While also expression of radically liberalist ideas in communist countries have also been seen as offences punishable by law in such states!

But is appluadable that the conversation around this principle be kept continuing with the hope that states would one day come to a common understanding of the principle of the rule of law.

But the debate needs to be kept alive beyond the political corridors of power to afford engagement with all community members on this principle.

At the end of the day, it is the civic society that shall be able to hold governments accountable to the rule of law-given that they are the most effecient wheels of change turning around in very hostile environments.

It is time to restraint powers and authorities of state. Today, I see state machinery oppressing citizens and killing its own peoples. I can not imagine rule of law and justice unless we restrain state and governments and make them observe rule of law. Simple, plain and democratic laws and regulations play singularly vital role in promoting rue of law, fairness and justice.

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