Rule of Law Reform in Post-Conflict Environments: Problematic Realities from Kosovo
Date
2012-05-29
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
Over the past two decades, efforts to promote the rule of law around the globe have expanded, especially in post-conflict environments. As Thomas Carothers remarked, “One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s problems.”1 The rule of law went through a revival in the 1990s, as Western nations and private donors poured hundreds of millions of dollars into programs to redraft constitutions and laws, strengthen judicial institutions, professionalize and reform police forces, curb corruption, and improve correctional systems in transitional and developing countries. Such programs have shown promise, but profound questions remain as to their impact on political, economic and social conditions, particularly in societies broken apart by civil wars and ethnic conflict. From Bosnia and Haiti to Afghanistan and Iraq, rule of law reform has been haphazard, under-resourced, and at times internally contradictory, with as many failures as successes.
This project explores two competing approaches to rule of law reform in post- conflict environments: the security-based approach, a top-down procedure whereby the attention is on establishing law and order; and the norms-based approach, which focuses on the importance of a background of normative expectations, a standard by which reform is to be evaluated and to which efforts to promote the rule of law should aspire. This project identifies the theoretical underpinnings and practical implications of the two approaches. It asks why rule of law reform efforts so often fail in post-conflict environments. Moreover, it asks what needs to change before they can succeed. To answer this question, I examine Kosovo, a post-conflict setting in which rule of law reform has taken center stage for over a decade. I draw out the inherent tradeoffs between the two approaches and their ensuing effects in four distinct periods of rule of law reform in Kosovo.
Overall, I find that rule of law reform in post-conflict environments typically follows the security-based approach, which actors prioritize to prevent spoilers, deter crime, and restore public trust. The norms-based approach is often more difficult to implement, as it depends on the ability to bring about substantial changes in the values and attitudes of those who hold political power, yet it is crucial to sustainable reform with real impact. In Kosovo, intervention forces carried out large-scale arrests and detentions with no clear legal authority, which sent a message of arbitrary rule that effectively undermined the rule of law norms they sought to promote. More than a decade later, Kosovo is still struggling to hone the rule of law. This study reaffirms the tensions between the two approaches, and should spur further research on the problematic realities of rule of law reform in other post-conflict cases.
Description
Keywords
rule of law, Kosovo, post-conflict, foreign policy, ethnic conflict