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THREE PRINCIPLES TO KICKSTART UN DISCUSSION ON THE RULE OF LAW
James A Goldston
guardian.co.uk
Friday 27 January 2012 17.44 GMT
When the UN convenes a discussion on the rule of law, they would
should restate some common sense principles
The case of Spanish judge Baltasar Garzon in court highlights the
politicisation of law Photograph: Pedro Armestre/AFP/Getty Images
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 politicisation 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
James A Goldston
guardian.co.uk
Friday 27 January 2012 17.44 GMT
When the UN convenes a discussion on the rule of law, they would
should restate some common sense principles
The case of Spanish judge Baltasar Garzon in court highlights the
politicisation of law Photograph: Pedro Armestre/AFP/Getty Images
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 politicisation 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