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.