The nature of war has changed, with the majority now being intranational rather than international. This research from the United States Institute of Peace argues that in this context new tools are required to manage conflict and to make and maintain the peace. Most important in this is the development of the rule of law. If diligently nurtured, rule of law’s contribution to accountability, conflict resolution, limits on power and the processing of opposing views can reduce the likelihood of another civil war.
In recent years, 93 per cent of the major armed conflicts have been ethnic or religious conflicts, disputes over self-determination or succession or violent political struggles between opposing domestic political factions. The techniques that may have been appropriate for resolving wars between states are often unable to bring reconciliation between domestic adversaries who together must build a durable national union. In this new scenario, establishing the rule of law becomes increasingly important, particularly in the immediate postconflict construction of peace.
Rule of law imposes a network of institutions, mechanisms and procedures that check sources of tension at an early phase, prevent any party from engaging in violent action and offer fairness and openness.
The shift from international to intranational conflict affects the rule of law in several ways:
- Many laws which were previously only used in conflict between states are increasingly being applied to abuses in intrastate conflicts.
- There is a greater acceptance of the universal jurisdiction over crimes – so that crimes committed in one country can be prosecuted in another.
- While state military forces receive basic instruction in the international rules that govern their conduct, insurgent groups engaged in civil wars, to whom these international rules of conduct now apply, do not receive any training.
- Governments against which these groups are fighting are reluctant to have them sign the Geneva Convention since it is seen to give them legitimacy.
- While war between two states can be resolved without changes to the internal laws or institutions of the warring parties, resolving conflict within a state requires changes to assure each group that their interests will be protected through non-violent means.
The rule of law incorporates many elements necessary to ease tension and lessen the likelihood of further conflict. Those involved in postconflict peacebuilding and societal reconstruction need to face the challenges associated with accounting for past abuses and constructing a new constitutional order.
- Courts should be set up as the main forum for the peaceful resolution of disputes but should be part of a whole system of criminal justice, including a law-abiding police force, prison system and criminal defence lawyers.
- Truth and reconciliation commissions can complement criminal trials, serving a different but vital function for societies in transition.
- A balance is needed between legitimately removing individuals implicated in repression from government structures and avoiding widespread political purges.
- Enabling society to participate in drafting the constitution means the process will involve compromises in time, content and money but it can produce a constitutional system that is more widely accepted and more supportive of peace.
- Local ownership is important. This requires new approaches based on local decisions informed by outside advice.
