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NAGTRI International Fellows Rule of Law

Marc Birnbaum, Assistant Attorney General, Office of the Attorney General of Virginia; Madeleine Laracy, Acting Deputy Solicitor-General (Criminal), Crown Law New Zealand; Piotr Radomski, Public Prosecutor, Prosecutor General’s Office Poland; Masouma Rezaie, Legal Advisor, Afghan Prosecutor’s Association Afghanistan; and Geralyn Trujillo, Acting Deputy Bureau Chief, Office of the Attorney General of New York

This is the first of four rule of law articles to appear in NAAGazette. They are the work of attorneys who participated in the June 2014 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program.

This group was asked to think about the role of international organizations in promoting the rule of law, including accountability measures that might be used in determining the success of the program for the people who the program is designed to assist.

For the United Nations, the 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.

United Nations Secretary General Kofi Annan, 2004

International organizations have an important role to play in ensuring that the rule of law thrives by providing funds and in-kind assistance for establishing the justice infrastructure and fostering public adoption of the rule of law. Another equally important role is taking steps to ensure that rule of law principles are themselves followed as the assistance is being offered and implemented. Ideally, there should be visible short-term benefits, but, more critically, such measures should provide the assistance, capacity development, and knowledge that allow local justice institutions to thrive in the long term.

International organizations, including the World Bank, IMF, sections of the UN, Interpol, Red Cross, Organisation for Security and Cooperation in Europe (OSCE), U.S. Institute for Peace, Eurojust, etc., all reflect and promote standards which can be universally accepted. Difficulties come, however, with the way the standards are implemented or how the conditions (express or inherent) are imposed that can affect the provision of assistance.

Several principles govern all effective international assistance:

  • First, the relationship of all these organizations—to be successful—should be conceived of as a partnership with the State and/or with relevant organs of civil society within that State, rather than as the vertical imposition of policy.
  • Second, it is critical to understand the community, culture, and political context in which the particular assistance, development project or funding is going. In order to do this well, organizations need to gather information on the ground from a wide cross-section of the populace and from local institutions.
  • Third, the involvement of local users—the beneficiaries of the assistance—at the grassroots level builds participation, trust, accuracy of local understanding, and often, transparency and accountability.
  • Fourth, organizations must themselves follow and support rule of law principles.

International organizations working in developing or post-conflict countries to improve the rule of law must focus on identifying where the judicial infrastructure most lacks resources as they decide which aid projects to provide in order to support the justice system. These aid projects may include the need for legislative drafting, court rooms, professional training, access to counsel, technical resources, more law enforcement resources, and mobile resources.

When providing economic assistance —such as direct funding for particular projects or more generic loans to government—it is necessary to ensure that the way the project is implemented adheres to rule of law standards. Where in a particular State there has been a profound failing, or even a complete abrogation of the rule of law, as is frequently the case for post-conflict States, a partnership model and an authentic commitment on the part of the recipient State to adhere to rule of law principles is critical to the success and legitimacy of the assistance program.

In this regard, some best practice considerations would include:

  • An effective model for foreign rule of law projects and initiatives to take root and succeed in a developing country occurs where the specific assistance need or priority has been identified by the local community itself to the relevant government ministry. This process fosters local, as well as high-level host country commitment. It can also assist in centralizing information about both pressing needs and available assistance, so as to better prioritize nationally and to avoid duplication of assistance.
  • Institution of measures to track and monitor the expenditure of funds and assistance to ensure that the purpose of the project is being fulfilled and funds are not being misused in any way. Examples of such measures include clear and accessible documentation — ideally publicly available — which sets out the terms, conditions, timeframes, and audit arrangements for the project. Other measures are regular auditing of expenditure and money flows by the donor or by an independent third party; staggered or structured loans dependent on proof of progress; and deterrent consequences for misuse of the support/aid arrangements.
  • Providing grants to support civil society institutions to help keep the government accountable and communicating with them on a regular basis about the assistance projects.
  • Supporting honest, locally-oriented private enterprise, so that all of the economic power and business opportunities are not vested in the government. Micro-lending to marginalized groups is a small-scale example of this, and there can be benefit in supporting bigger financial enterprises as well.
  • Educating and informing the public, especially the beneficiaries or the locally affected community, about the work to be advanced. This ensures that they are informed, able to participate, and able to themselves question and monitor progress. Articulate community peer pressure so that it can serve to hold those in charge of funds or projects accountable. Education and information can be provided through websites, media outlets and regular meetings with the community. The more knowledge members of the community have about the project, the more likely government actors and international organizations will be held accountable for the way in which assistance is being rendered. An example of this is Afghanistan where donors provide legal awareness for community elders in villages.
  • In-depth research, consultation, and information gathering on the specific local context into which the foreign assistance or organization is going.

Groups which are politically, economically, or socially disempowered represent a grave failure of the rule of law in a State. Not only are such people probably being denied fundamental or primary human rights (such as discrimination, access to justice and even physical abuse), but also their ability to participate in decision making and governance is denied. Empowering them through education generally, as well as more direct access to justice support, is vital. Measures to strengthen marginalized groups can be implemented by:

  • Micro-lending to small groups such as women’s collectives.
    • In our group, we have discussed examples of Afghanistan success with organizations that lend money to women to buy small farms or even just a number of chickens or other livestock. When the small enterprise begins to become productive, the loan is repaid by sale of the produce.
  • Bringing courts and other critical social services to these groups (for instance, mobile clinics).
  • Bringing education, technical knowledge, and information to marginalized groups. When we provide knowledge to these groups, we empower them. Examples include the Internet; leaflet drops; ads on TV in Afghanistan about free vaccinations for children; local clinics; public meetings; or newspapers. All media available should be used.
  • Public information gathering and in-person meetings are critical. This allows a two- way information flow. The donors learn the crucial detail about the local context, and the people are provided with information on the justice issue under discussion. Consulting and working with people at this grassroots level also implicitly but powerfully reinforces to these communities the basic message that they are important, their views matter, and that, while they may be a small group or poor, they have a role to play in the development of a just society.
  • Increasing the standard of education and literacy generally in a country will also indirectly support the rule of law and the position of marginalized groups.
  • Improving the flow of public information. There are a number of key mechanisms available to international organizations to achieve this: encouraging the enactment or proper use of Freedom of Public Information statutes; improving the quality of public broadcasting; and supporting good investigative journalism.

There are a myriad of ways in which the principle of partnership with the stakeholders of the justice project in the host country can be exhibited. At the conceptual level it is not controversial that the model of arrangements and memoranda of understanding should be one of partnership. However, this will often need to be given effect in very practical ways as well, such as a high level of consultation in decision making, or doing things “in the local way.” New Zealand (NZ), by way of example, has achieved a very high degree of success and high levels of appreciation for a domestic violence police training program in the South Pacific, whereby specially trained NZ police have gone and lived and worked with local police in the Pacific to ensure that all of the training translates to the reality of the local pressures and challenges which the police and victims face. Another example of very effective embedded assistance is the NZ Pacific Legislative Drafting program, which sees specialist counsel going and working alongside local Pacific Island lawyers in their countries to ensure that the laws are drafted in a way that is consistent with local legislation and will be capable of achieving policy goals.

Although most of the above discussion has centered on “aid” as such, the four core principles identified at the outset apply also to other forms of international law enforcement assistance, which is designed to enforce the rule of law by holding criminals accountable. The fourth principle—that the provider of assistance itself adheres to the requirements of the rule of law—probably needs no further discussion.

In terms of non-financial or non-project assistance, Interpol provides a good example. Interpol is essentially an international police information sharing network. It operates most effectively when all countries consider they are 1) operating in a partnership of equals; 2) understand the local context in which information is obtained overseas or might be used (which could give rise to a range of risks); and 3) where there is a good local police information supply (for example, where the network allows information to be quickly obtained and goes beyond what is available at central police headquarters).

Another law enforcement example of rule of law focused cooperation is the European Joint Investigation Team model (JIT). In this JIT model there might be two European countries with well-oiled working relationships engaged with a non-European Union developing State in a complex or novel investigation. This may well challenge the capacity of the developing State, but at the same time, it has a vested interest in the process and wants to approach it as an equal and with a degree of authority and autonomy. The three principles of partnership, respecting and understanding local context, and working at a grassroots level with the key law enforcement personnel have clear practical application here, too.

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