SUMMARY:
1. Introduction. - 2. The Rule of Law and the Rule of Justice are accredited
Principles and Goals in International Conventions and Declarations. - 2.1
Implicit and Modest Articulation in International Charters and Universal
Declarations. - 2.2 Explicit Stipulations in the Regional Charters. - 3.
Mechanisms and Tools for stipulating the Rule of Law and the Rule of Justice in
International Charters and Declarations. - 3.1 Legislative Mechanisms. - 3.2
Practical Mechanisms and Processes.
1 Introduction
The
terms of the title of this article refer to the two branches of public law:
constitutional law for the rule of law1 and the rule of justice,
and the public international law for international conventions and
declarations. However, it must be acknowledged that since the end of the Cold
War, the barriers between the two branches of law have receded, and are at the
moment overlapping each other to the extent of generating discourse about
constitutionalizing the international law2 and internationalizing
constitutional law3.
Many legal terms hitherto preserved for the Dictionary of Constitutional Law,
such as rule of law, democracy and good governance, has become common
terminology in public international law as well. The reasons for that are the
transformation of international relations and the development of public
international law.
Public
International law, which has been consolidating the constitutional autonomy of
States and their absolute sovereignty in the choice of their political,
economic, social and cultural systems, and has been considering the question of
the relationship between the State and its two perspectives at the heart of its
sovereignty, started to attach great importance to these issues and to see them
as subject to the supervision of the international community. It exerts utmost
keenness to strengthen and respect human rights and consolidates the rule of
law and the rule of justice, considering them as fundamental principles of law.
The
United Nations defines the rule of law as «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».
Justice
is defined as «an ideal of accountability and fairness in the protection and
vindication of rights and the prevention and punishment of wrongs. Justice
implies regard for the rights of the accused, for the interests of victims and
for the well being of society at large. It is a concept rooted in all national
cultures and traditions»4.
All
of the aforesaid leads us to reflect on how international charters and
declarations have addressed the terms rule of law and the rule of justice.
We shall highlight in the first section how the rule of law and the rule of
justice have been coded in international conventions and declarations; and in
the second section we shall point out the mechanisms devoted to the rule of law
and the rule of justice in international charters and declarations.
2. The
Rule of Law and the Rule of Justice are accredited Principles and Goals in
International Conventions and Declarations
Regardless
of the differences in the formulation of the expressions used, most
international charters and declarations consider the rule of law and the rule
of justice as targets, which countries aspire to achieve at national and
international levels, or as a principle backed by national and international
political and legal systems. Although the articulations of these principles are
implicit or modest in most international conventions and universal
declarations, regional conventions are more precise and better articulated in
these matters.
2.1
Implicit and Modest Articulation in International Charters and Universal
Declarations
Although
they have not explicitly and clearly mentioned the rule of law and the rule of
justice, the majority of international conventions and universal declarations
particularize the rule of law and the rule of justice as two principles and
goals necessary to achieve respect for the rights of individuals and groups.
The Universal Declaration of Human Rights, adopted on 10 December 1948, the two
international covenants relating to human rights and the Charter of the United
Nations Organization establishing the United Nations Educational, Scientific
and Cultural Organization (UNESCO), evidences this.
a)
The Universal Declaration of Human
Rights adopted on 10 December 1948
Although
included in a recommendation issued by the United Nations General Assembly, the
Universal Declaration of Human Rights adopted on 10 December 1948 is considered
the main reference for the legal system of human rights or the International
Bill of Human Rights5.
Due to its importance, it has been elevated to the status of a binding
international customary law.
Many
constitutions have taken cognizance of this Declaration Despite the non- availability
of the terminology of rule of law and the rule of justice when the
Declaration was adopted at the end of World War II, the declaration included
references to the two terms of the subject of our research. The preamble
indicated in reference to the rule of law that «it is necessary that the law
shall protect human rights in order not to push the person at the end of the
matter to revolt against tyranny and injustice».
As
regards the rule of justice, the Universal Declaration was more detailed. It
says in the eighth article: «Everyone has the right to an effective remedy by
the competent national tribunals for acts violating the fundamental rights
granted to him by the constitution or by law». Moreover, Article X states
«Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him». Thus, the Universal
Declaration laid the foundations that subsequent mechanisms will build upon,
particularly those relating to the two International Covenants on Human Rights.
b)
The two International Covenants on
Human Rights
The
Universal Declaration was not, despite its importance, fully responsive to the
needs and aspirations of humankind. It was a foundation s but not the whole
building. Since it was published and until 1966, it did not have binding legal
value as it was a recommendation of the United Nations General Assembly and it
lacked the punitive mechanism for enforcement on the parties that violate the
rights and freedoms proclaimed therein.
To
give legal force and mandatory obligation to the principles enshrined in the
Universal Declaration, the United Nations deployed efforts towards the adoption
of a new Bill of Human Rights through a draft Charter and international
treaties with provisions to enhance human rights protection and define in
detail the binding limits that States must adhere to in the application of
rights and freedoms, such as some kind of international oversight and control
over the application of the Conventions.
The
two Covenants are binding international treaties, with legal obligations for
the States parties. These Conventions have also instituted an international
monitoring system to ensure the application of the rights and freedoms
contained therein, and designed to provide various safeguards to protect the
rights and freedoms.
With
regard to the Covenant on Civil and Political Rights7,
the phrase rule of law was not explicitly stated therein, but it was
clearly spelt out that the rights and freedoms can be exercised only within the
scope of the law. For example, the right to life is the first of all rights and
the law should protect it; just as the right to equality before the law without
discrimination or the principle of no crime and no punishmen t except in
accordance with the law. The frequency with which the term “Law” was mentioned
denotes the supremacy of the law and the need to abide by it and respect its
provisions.
As
for the rule of justice, the International Covenant on Civil and
Political Rights was more elaborate. By virtue of the Covenant, «Where not
already provided for by existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such laws or other measures as may be necessary to
give effect to the rights recognized in the present Covenant». States also
undertake «to ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that
the violation has been committed by persons acting in an official capacity»;
and «to ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy8»;
The Covenant also recognizes the right of everyone to the determination of any
criminal charge against him, or of his rights and obligations in a suit at law,
and everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
c)
Human Rights sectorial conventions
The
International Bill of Human Rights consists, in addition to the Universal
Declaration and the two International Covenants, of a number of sectorial
conventions for the protection of the rights of certain groups of people
(women, child, migrant workers) or for protection against certain behaviours
(racial discrimination, torture).
And
these agreements contain references to the rule of law or the rule of justice.
The
International Convention on the Elimination of All Forms of Racial
Discrimination9
states in Article 5 that States Parties pledge «to prohibit and
eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin,
to equality before the law». Equality before the law without discrimination
whatever its source and whatever the form it takes is a basic component of the
principle of the rule of law.
As
for the rule of justice, the Convention is quite clear. In Article 5 (a), it
sets forth «the right to equal treatment before the tribunals and all other
organs administering justice». Article 6 added the right to a fair trial
without discrimination in the following terms: «States Parties shall ensure for
every person within their jurisdiction the right of recourse to national courts
and other competent state institutions to protect and effectively remedy them
in respect of any act of racial discrimination which is a violation» of his
human rights and fundamental freedoms and is contrary to this Convention, as
well as the right of recourse to the courts to seek fair and adequate
compensation or any appropriate and just reparation for any damage suffered as
a result of such discrimination.
The
Convention on the Elimination of All Forms of Discrimination against Women10 followed
the same path. Article 2 (c) states the need to «establish legal protection of
the rights of women on an equal footing with men, and to ensure the effective
protection for women through competent courts and other public institutions in
the country, against any act of discrimination». Article 15, paragraph 1,
stressed the principle of equality before the law in the following words:
«States Parties shall accord to women the equality with men before the law».
There
is no doubt that the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment11 and punishment for this
crime is foremost of all the agreements, which have placed emphasis on the rule
of law and the rule of justice. This agreement addresses one of the most
important human rights and the most vulnerable to violations, that is, the
right to physical integrity. The agreement devotes articles 412 and
6, paragraph 1, to the principle of the rule of law. Article 4 upholds «the
need to criminalize torture» while Article 6, paragraph 113,
evokes the principle that a foreigner should not be put under detention unless
in accordance with the law and with the necessity of guaranteeing the defence
and the media.
With
respect to the virtue of justice, the Convention on the Prevention of Torture
makes e it a central principle, especially in Articles 514, 715 and
916.
d)
The United Nations Charter, signed on
26 June 194517.
Like
all international charters and declarations signed after World War II, there
are no explicit statements devoted to the rule of law and the rule of justice
in the Charter of the United Nations. However, the consolidation of the rule of
law and human rights is seen as an essential element in bringing lasting peace
and international security in an effective manner and in achieving progress and
development in the economic field. The same applies to the principle of
accountability before openly enacted and equally enforced laws applied and
invoked in the context of an independent judiciary. In other words, the rule of
law and the rule of justice are perceived as contributing to the achievement of
the United Nations mission and the goal for which it was established.
In
this context, we note that the Secretary-General of the United Nations strongly
recognizes the principle of supremacy and the rule of law, as demonstrated in
the various reports, which we will analyse, and study later in the second part
of the research. This is also evidenced by the large number of General Assembly
recommendations on strengthening the rule of law, most recent of which is
resolution 69/123 entitled «The rule of law at the national and international
levels».
e)
The Constitution of the United Nations
Educational, Scientific and Cultural Organization (UNESCO) adopted on 16
November 1945
The
objective of establishing UNESCO was «to contribute to the maintenance of
international peace and security by working through education, science and
culture on closer cooperation between nations to ensure universal respect for
justice, law, human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion as established by the Charter of the
United Nations for all peoples». UNESCO's Constitution is considered as a
pioneer in highlighting the importance of the rule of law and the rule of
justice. However, the reference in the Preamble to the Constitution was not
enough to make the rule of law and the rule of justice legally binding rules.
It
may thus be concluded that the most important international conventions and
declarations do not represent appropriate mechanisms to consolidate and
strengthen the rule of law and the rule of justice, in view of the prevailing
international circumstances and the general context which gave rise to their
enactment and adoption. Nevertheless, this modest consideration has been
rectified and their shortcomings overcome in regional conventions and treaties.
2.2 Explicit
Stipulations in the Regional Charters
Unlike
international conventions, many regional conventions have set forth their adherence
to the rule of law and the rule of justice as a principle and a goal.
a)
Charter of the Organization of American
States concluded on 30 April 1948
This
Charter entered into force on 13 December 1951. The Organization of American
States is a regional organization within the United Nations, which seeks to
achieve collective self-defense, regional cooperation and peaceful settlement
of disputes. The Charter of the Organization defines the guiding principles of
the group, namely: respect for international law, social justice and rule of
law; economic cooperation and equality of all peoples.
The
fifth chapter of the Charter stipulates the need for the political institutions
of American States to be built on actual practice of parliamentary democracy.
This was emphasized in the third chapter of the Democratic Charter of American
States concluded on 11 September 2001 which determines the essential elements
of representative democracy, including respect for human rights and fundamental
freedoms, access to and exercise of power in accordance with the rule of law,
the conduct of free and fair elections on the basis of secret voting as an
expression of popular sovereignty, and multiparty system, political parties and
organizations and the separation and independence of public authorities.
b)
Statute of the Council of Europe
concluded on 5 May 1949
The
Council of Europe is the first international organization to accord utmost importance
to the issue of the rule of law and the rule of justice, and to make them the
centrality of the organization, the goal of which is not only to achieve, but
also to strengthen these rules, given the fact that the interest of this
organization is positioned entirely on respect for human rights and the
propagation of democracy in Europe.
The
preamble to the Statute of the Council of Europe states that Member States are
attached to the moral and spiritual values which are considered a common
heritage of their people, and which is the source of the principles of
individual freedom, political freedom and the supremacy of law, all of which
constitute the bases of the principles of true democracy.
Chapter
III also stipulates the need for each Member State of the Council of Europe to
recognize the principle of the rule of law. Moreover, Chapter VIII acknowledges
that each Member State representation will be subject to suspension and the
possibility of withdrawing its membership in the case of non-respect of the
provisions Chapter III. This means that any European country can become a
member of the Council of Europe if it accepts the principle of the rule of law,
the rule of justice and democracy and vows to ensure human rights for all
persons under its jurisdiction.
c)
The Constitutive Act of the African
Union adopted on 11 July 2001
The
African Union replaced the Organization of African Unity, which was established
in 1963 when many African countries were gaining independence. Paradoxically,
the Charter, which was signed on 22 May 1963 did not give the issue of the rule
of law any attention given the fact that the primary goal at that time was to
support the independence and sovereignty of States and the elimination of
economic backwardness, as well as consolidate African solidarity and promote
the continent to assume its proper position on the scene of international
decision-making.
However,
by the end of the nineties, things changed radically as African rulers
understood the lesson by the end of the Cold War and decided to abandon the
legacy of the historical organization and establish a new organization to keep
pace with the time.
The
preamble of the Constitutive Act of the Union stipulates the objectives, the
most important of which are «promotion and protection of human and peoples’
rights and support the institutions, culture, democracy and ensure good
governance and the rule of law». The Constitutive Act also acknowledged that
among the principles on which the Union is based is «respect for democracy,
human rights and the rule of law, good governance and the promotion of social
justice to ensure balanced economic development»18. The Constitutive Act also
added in Article 30 that governments that come to power through
unconstitutional means would not be allowed to participate in the activities of
the Union.
Perhaps,
the most striking aspect of the new trend in the African Union was the adoption
of the African Charter on Democracy, Elections and Good Governance on 30
January 2007 by African Heads of State and Government, which entered into force
on 15 February 2012. The Charter aims at strengthening Member States'
commitment to the principles and universal values of democracy and respect for
human rights and also the promotion of commitment to the principle of the rule
of law based on the supremacy of the Constitution and the constitutional order
in the political organization of Member States.
As
for the principles of the Charter, they are based on the universal values of
democracy, respect for human rights, the rule of law and supremacy of the
Constitution and the constitutional order in the political arrangements of the
States. The Charter stresses the importance of monitoring elections by
electoral observer missions and special advisory missions as well as the need
to create an enabling environment for independent and impartial national
monitoring mechanisms.
d)
EU Treaty
The
European Union inherited the European Economic Community, which was constituted
under the Treaty of Rome in 1957, and political issues were not part of its
jurisdiction. However, with the development and expansion19 of
the European structure, the European Union was transformed from a purely
economic community into an economic and political union following the
conclusion of the Maastricht Treaty signed on 7 February 199220,
and revised several times. Subsequently in 1997, the Maastricht Treaty was
replaced by the Amsterdam Treaty, which introduced significant changes to the
former treaty. The Treaty of Amsterdam was concerned with increasing emphasis
on citizenship, the rights of individuals and more democracy in the form of
enhancing the powers of the European Parliament21.
The
preamble of the Treaty confirms the adherence of European Union States to the
principles of freedom, democracy and respect for human rights and fundamental
freedoms and for the rule of law. In Chapter II, the Union acknowledged that it
is based on respect for the principles and values of human freedom and
democracy, justice and the rule of law, human dignity as well as respect for
human rights, including respect for minority rights and that it seeks to
promote and support democracy, the rule of law and human rights, justice and
the general principles of international law in its foreign policy and achieve
common security security.
e)
The Charter of the Organization of
Islamic Cooperation22
The
Dakar Charter, which was signed on 14 March 2008, confirms in its preamble that
it aims to preserve the noble Islamic values of peace, compassion, tolerance,
equality, justice and human dignity. It also aims at promotion of human rights
and fundamental freedoms, good governance and the rule of law, democracy and
accountability in Member States in accordance with their constitutional and
legal systems.
The
seventh paragraph of Chapter II enumerated the principles that Member States
undertake to adopt and adhere to, the most important of which are Member
States’ support and promotion of good governance, democracy, human rights and
fundamental freedoms and the rule of law.
3. Mechanisms
and Tools for stipulating the Rule of Law and the Rule of Justice in
International Charters and Declarations
Stipulating
the principles of the rule of law and the rule of justice is not enough to make
them a reality, neither is it enough to provide the necessary effectiveness. It
is therefore important to conduct continued monitoring through the adoption of
effective mechanisms (a) at the legislative level, on the one hand (a) and the
operational level, on the other.
3.1
Legislative Mechanisms
United
Nations organs play a vital role as derived from the Charter. According to the
stipulations in the United Nations Charter, the General Assembly initiates
studies and does not hesitate to make specific recommendations on issues
related to the general principles of cooperation in the maintenance of
international peace and security with the aim of promoting international
cooperation in the political field and encouraging the progressive development
of international law23.
In
this context, the United Nations General Assembly has continued to consider the
issue of the rule of law and the rule of justice as a standing item on its
agenda since 1992, and it has taken several decisions on the matter. For
example, on the occasion of reaffirming the importance of developing a
comprehensive global development agenda beyond 2010 as a way to establish a
democratic and equitable international order, and to demonstrate its
determination to take all the measures within its power to ensure the
establishment of a democratic and equitable international order, the UN General
Assembly «declares that democracy includes respect for all human rights and
fundamental freedoms and it is a universal value based on the will of the
people expressed freely in determining their political, economic, social,
cultural and full participation in all aspects of their lives, and reaffirms
the need for universal adherence to the principle of the rule of law and
the implementation of this principle at the national and international levels24».
In
application of its agenda, the General Assembly adopted a series of resolutions
on «the rule of law at the national and international levels» the most recent
of which is resolution No. 69/123 of 10 December 2014, in which the General
Assembly affirms that the human rights and the rule of law and democracy are
interdependent issues, mutually reinforcing and fall within the values of the
United Nations and its basic principles which are indivisible and stresses the
need to support the rule of law at the international level and promote it
according to the principles of the Charter of the United Nations. The General
Assembly also expresses its full support for the role played by the Panel on
coordination and advice in the field of the rule of law in order to coordinate
efforts and achieve overall consistency in the United Nations system.
Within
the framework of existing mandates and invites the panel to interact with the
Member States, especially in the informal briefing sessions.
As
part of its support for the rule of law and the rule of justice, the plenary
calls upon the United Nations system to systematically address the aspects
related to the rule of law as appropriate in the relevant activities in this
field, as a recognition of the importance of the rule of law in most of the
areas where the United Nations is involved. The General Assembly also requests
the Secretary-General to submit an updated inventory of the activities carried
out by the various organs and bodies, offices and departments, funds and
programs affiliated to the United Nations system and devoted to strengthening
the rule of law at the national and international levels. The Secretary-General
is further required to prepare after seeking the views of Member States, a
report defining the ways and means to promote and coordinate the activities
listed in the inventory to be prepared, with particular attention to the
effectiveness of the assistance that some countries may request for
capacity-building which may require it to strengthen the rule of law at the
national and international levels. In addition, the General Assembly calls upon
the International Court of Justice and the United Nations Commission on
International Trade Law and International Law Commission to provide in their
reports to be submitted by each of them to the General Assembly, some comments
on the current roles played by each of them in the promotion of the rule of
law.
The
General Assembly takes note with appreciation of the report of the Secretary-
General entitled «Uniting our strengths to enhance the support provided by the
United Nations for the rule of law», and supports the Panel on coordination and
resources in the field of the rule of law, which receives support from the Rule
of Law Unit in the Executive Office of the Secretary-General, led by Deputy
Secretary-General and requests the Secretary-General to submit to the General
Assembly without delay the details of the needs of this Unit in terms of jobs
and other needs for its consideration25.
Through
these sample decisions, it is crystal clear that the plenary emphasizes the
need for universal adherence to the rule of law, implements this need equally
at the national and international levels and their solemn commitment to an
international system based on the rule of law and international law, a system
that is considered, alongside with the principles of justice, indispensable for
the peaceful coexistence, international cooperation and express the conviction
that the United Nations and Member States should be guided in its activities to
promote and respect the rule of law at the national and international levels,
as well as justice and good governance26.
On
the occasion of the United Nations Conference on Crime Prevention and Criminal
Justice on 15 April 2015, the chairperson of the General Assembly stated that
«If we do not have the rule of law, peace and security cannot be achieved, and
if there is no peace and security, development will not be realized».
The
Security Council for its part does not differ much from the General Assembly.
It supports the rule of law and the rule of justice. It has also conducted many
thematic discussions on them and adopted resolutions emphasizing the importance
of these matters in the context of issues pertaining to women, security, children
and armed conflicts and the protection of civilians in armed conflicts. For
example, the statement of the President of the Security Council during the
meeting held on 19 January 2015 concerning the Council's consideration of the
item entitled «Maintenance of international peace and security: Inclusive
development for the maintenance of international peace and security», where he
confirmed that it is necessary to help any country to come out from conflict in
a sustainable manner through a comprehensive and integrated approach, taking
into account the correlation between political, security and development
activities as well as human rights activities and the rule of law, reinforcing
the handling of the reasons underlying the conflicts including the strengthening
of the rule of law at the national and international levels and promotion of
economic growth and development of sustainable political, religious and
cultural tolerance and poverty eradication.
On
the same issue, the Security Council stressed that security sector reform is an
essential element in any process to achieve stability in post-conflict and
underscored the close link between this reform and the rule of law and the
administration of justice in the transitional phase, and the disarmament,
demobilization, reintegration and protection of civilians27.
The rule of law and the rule of justice are considered the key elements in
conflict prevention, peacekeeping, conflict resolution and peace-building.
Thus,
the Security Council attaches great importance to the promotion of justice and
the rule of law as indispensable elements for achieving lasting peace.
Activities for promoting the rule of law are very important in the
peace-building strategies in the communities emerging from conflict. Thus, it
emphasizes the role of the Peace Building Commission in this regard. It also
supports the idea of establishing a unit within the Secretariat to assist in
establishing the rule of law28.
The
Secretary-General of the United Nations stressed in his report entitled the
rule of law and transitional justice in conflict and post conflict societies,
stating that «The United Nations will support the local departments concerned
with the reform and will assist in the building of the national institutions of
justice sector to facilitate the procedures of national consultations on
justice reform and transitional justice and help in filling the vacuum in the
field of rule of law, apparently clear in a number of many post-conflict
societies»29.
Thus,
we realize that in spite of the silence of the United Nations Charter and its
failure to consecrate the rule of law and the rule of justice, its principal
organs have not ceased to show their support to the extent that the rule of law
and the rule of justice have become international rules for which the United
Nations mobilizes all available means to consolidate on the ground.
3.2 Practical
mechanisms and Processes
The
United Nations continues to promote justice and the rule of law through the
three pillars of its work, as previously explained: international peace and
security, progress and social and economic development; and respect for human
rights and fundamental freedoms. In this regard, it relies for its support and
consolidation of the rule of law and justice on practical mechanisms, the most
important of which are peacekeeping operations, the efforts of which the
department concerned is striving to organize.
To
assist Member States and the Secretary General in their efforts to maintain
international peace and security, the Department of Peacekeeping Operations
provides political and executive direction to the operations of the United
Nations peacekeeping operations around the world, and stays in touch with the
Security Council and both the troops contributors as well as financial
resources contributors, and the parties to the conflict for implementation of
Security Council mandates30.
The
support provided for both sides in matters of the rule of law and the rule of
justice within the framework of peacekeeping operations includes needs
assessment and mission planning, selection and deployment of specialists,
provision of guidance and support for the rule of law elements in the missions.
It also strengthens law enforcement, supports the justice institutions at the
local level, facilitates the holding of national consultations on justice
reform, coordinates international assistance in the sphere of the rule of law
and monitoring of court procedures and submits reports thereon, trains national
justice sector staff, provides support to local bodies for judicial reforms and
proffers advice to the rule of law institutions of the host countries.
Peacekeeping
Operations also help actors to sort out and select police officers, judges and
national prosecutors, provide assistance in the drafting of new constitutions,
revising legislations, informing and educating the public, developing human
rights commissions and in build the capacity of the civil society to monitor
the justice sector. Peace missions further help host countries to address past
human rights violations through the establishment of courts and fact-finding
and national reconciliation mechanisms.
It
is noteworthy that approximately forty the United Nations structures are active
in the area of rule of law, and the Organization is working on implementation
of the rule of law programs and operations in nearly 110 countries all over the
world, mostly in Africa.
There
is no doubt that the great development of international criminal justice today
is the best guarantor of the rule of law and justice. The various international
courts (tribunals) established for the former Yugoslavia31 or
Rwanda32 or
Sierra Leone33or
in Cambodia or Lebanon contribute to the fight against impunity, thus enhancing
accountability for the most serious crimes.
In
2013, the International Criminal Tribunal for Rwanda concluded its work and is
now at the stage of closure, while the International Tribunal for the former
Yugoslavia is continuing its trials of senior political and military figures,
and the Extraordinary Chambers of the Courts of Cambodia are still working on
the trial of the major leaders of the Khmer Rouge movement. The Special
Tribunal for Lebanon is also still working within the framework of key actions
of the court, which began practically in June 2014.
If
the establishment of international criminal tribunals constitutes a significant
development in consolidating the rule of law and the rule of justice, the
establishment of the International Criminal Court34 in 2002 to investigate war crimes,
crimes against humanity, the crime of genocide and other serious violations of
human rights constitutes undisputedly the most prominent legal achievement in
the field of the rule of law and the rule of justice. The International
Criminal Court exercises a role complementary to national judicial organs. It
cannot perform its judicial function unless the national courts have shown
interest in it or have been unable to investigate matters, given the fact that
the responsibility of conducting investigations rests with the Member States of
the Court in the sense that the primary responsibility is heading towards the
same countries.
The
International Criminal Court has opened investigations in four cases in
Northern Uganda, the Democratic Republic of Congo, and the Central African
Republic and in Darfur. It had issued nine arrest warrants and detained two
suspects awaiting trial35
including in the following countries: Kenya, Libya and Côte d'Ivoire
and Mali.
All
of these mechanisms, regardless of their individual effectiveness, contribute
in supporting and establishing the principles of the rule of law and the rule
of justice, which have become well-established international legal principles
and basic standards of international relations.
1 Etat de droit en Français.
2 A. PELLET, Constitutionalisation of the UN
law or triumph of dualism, in http://www.alainpellet.eu/Documents/P
ELLET%20-%202009%20%20Constitutionnalisation%20du%20droit%20des%20NU%20ou%20triomphe%
20du%20dualisme.pdf
3 R. BEN ACHOUR, The Rule of Law and
International Law, Leaders, October 6, 2010.
4Report of the Secretary General of the
UnitedNations, 24 August 2004 : Therule of law and transitional justice in
conflict and post-conflict societies.
5 The Universal Declaration of Human Rights
adopted by the United Nations General Assembly on 10 December 1948, as a result
of what the world went through in terms of the scourge of World War II. After
the establishment of the United Nations, world leaders decided to complement
the Charter of the United Nations with a road map to guarantee the rights of
every individual in any place or at any time. The document envisaged by these
leaders was considered at the first session of the General Assembly in 1946.
The General Assembly reviewed the draft declaration of human rights and
fundamental freedoms and forwarded same to the Economic and Social Council
«with a view to submitting them to the Commission on Human Rights for
consideration ... in preparing the International Bill of Rights". The
Committee, at its first session in early 1947, authorized its members to
formulate what has been termed “a preliminary draft International Bill of Human
Rights». Subsequently, the work was taken over by a formal drafting committee,
consisting of members of the Committee selected from eight countries with due
regard for geographical representation. The Committee on Human Rights was
composed of 18 members drawn from various political, cultural and religious
backgrounds. Madam Eleanor Roosevelt, widow of US President Franklin D. Roosevelt,
was chair of the drafting committee for the Universal Declaration of Human
Rights, and with her was Mr. René Cassin of France, who composed the first
draft of the declaration, and the rapporteur of the Committee was Mr. Charles
Malik of Lebanon; the Vice-Chairpersons were Mr. Peng Chung Chang of China, and
Mr. John Humphrey of Canada, and Director of the United Nations Division of
Human Rights, who prepared the Declaration's blueprint . However, Mrs.
Roosevelt was recognized as the driving force behind the submission of the
declaration. The preliminary draft of the Declaration was proposed in September
1948 with more than 50 Member States participating in the preparation of the
final version. By Resolution 217 A (III) of 10 December 1948, the General
Assembly unanimously adopted the Universal Declaration of Human Rights in
Paris, but with eight abstentions; and the development of the full text of the
Universal Declaration of Human Rights took less than two years. At a time when
the world was divided into Eastern and Western blocs, it was clear that finding
a common ground on what should constitute the essence of the document was a
colossal task.
6 The International Covenant on Civil and
Political Rights: adopted and opened for signature, ratification and accession
by United Nations General Assembly resolution 2200 A (-21) of 16 December 1966;
entry into force: 23 March 1976; and currently has 167 States Parties. The
International Covenant on Economic, Social and Cultural Rights: officially
adopted and published by General Assembly resolution 217 A (3) of 10 December
1984. Entry into force: January 3, 1976.
7 Arbi Boumediene. A study on the International
Covenant on Civil and Political Rights and the First Optional Protocol thereto,
http://www.m.ahewar.org/s.asp?aid=344218&r=0.
8 Article 2, para 3 (b).
9 Adopted by the United Nations General Assembly
resolution 2106 (D-20) in January 21, 1965 and entered into force on 4 December
1969.
10 Adopted by the General Assembly resolution
34/180 of 18 December 1979 and entered into force on 3 September 1981.
11 Adopted by the General Assembly resolution 39/46
of 10 December 1984 and entered into force on 26 June 1987.spettmbr 1981.
12 1. Each State Party
shall ensure that all acts of torture are offences under its criminal law. The
same shall apply to an attempt to commit torture and to an act by any person
which constitutes complicity or participation in torture.
2. Each State Party
shall make these offences punishable by appropriate penalties which take into
account their grave nature.
13 Upon being satisfied,
after an examination of information available to it, that the circumstances so
warrant, any State Party in whose territory a person alleged to have committed
any offence referred to in article 4 is present shall take him into custody or
take other legal measures to ensure his presence. The custody and other legal
measures shall be as provided in the law of that State but may be continued
only for such time as is necessary to enable any criminal or extradition
proceedings to be instituted.
14 1. Each State Party
shall take such measures as may be necessary to establish its jurisdiction over
the offences referred to in article 4 in the following cases:
(a) When the offences
are committed in any territory under its jurisdiction or on board a ship or
aircraft registered in that State; (b) When the alleged offender is a national
of that State; (c) When the victim is a national of that State if that State
considers it appropriate. 2. Each State Party shall likewise take such measures
as may be necessary to establish its jurisdiction over such offences in cases
where the alleged offender is present in any territory under its jurisdiction
and it does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph I of this article. 3. This Convention does not exclude
any criminal jurisdiction exercised in accordance with internal law.
15 1. The State Party in the territory under whose
jurisdiction a person alleged to have committed any offence referred to in
article 4 is found shall in the cases contemplated in article 5, if it does not
extradite him, submit the case to its competent authorities for the purpose of
prosecution. 2. These authorities shall take their decision in the same manner
as in the case of any ordinary offence of a serious nature under the law of
that State. In the cases referred to in article 5, paragraph 2, the standards
of evidence required for prosecution and conviction shall in no way be less
stringent than those which apply in the cases referred to in article 5, paragraph
1. 3. Any person regarding whom proceedings are brought in connection with any
of the offences referred to in article 4 shall be guaranteed fair treatment at
all stages of the proceedings.
16 1. States Parties shall afford one another the
greatest measure of assistance in connection with criminal proceedings brought
in respect of any of the offences referred to in article 4, including the
supply of all evidence at their disposal necessary for the proceedings. 2.
States Parties shall carry out their obligations under paragraph I of this
article in conformity with any treaties on mutual judicial assistance that may
exist between them.
17 Entered into force in October 24, 1945.
18Article 4, para M of the Constitutive Act of the
African Union.
19 The Union is composed of 28 states.
20 Entered into force on 1 November 1993.
21 The treaty was signed on
2 October 1997 and entered into force on 1 May 1999.
22 The Organization of Islamic Cooperation,
formerly the Organization of Islamic Conference, is an international
organization with 57 Member States.
23Articles 11 and 13 of the United Nations
Charter.
24A decision takn by the General Assembly on 18
December 2014, to establish an international democratic and fair system.
25A decision taken by the General Assembly on 11
December 2008 on «the rule of law at national and international levels».
26A decision taken by the General Assembly on 4
December 2006.
27A statement of the president of the Security
Council, July 12, 2005, at the consideration of the item entitled “Maintenance of
international peace and security, the role of the security council in the
humanitarian crisis, challenges, lessons learnt and the way forward”. In the
same context, the decision of the security council in its session No. 7161 on
April 28, 2014, which states “provide a security sector, which is efficient,
effective, professional, accountable, without discrimination and full respect
of human rights and rule of law which form the corner stone in peace and
sustainable development and considered an important factor in conflict
prevention.
28A statement of the president of the Security
Council, 22 June 2006, during consideration of the item entitled “consolidating
international law, rule of law and maintaining international peace and
security”.
29 Report of the UN Secretary General on 23/08/2004
entitled: Rule of law and transitional justice in conflict and post conflict
societies.
30 Currently, there are 16 peace keeping
operations: In Africa: The United Nations Integrated Mission multidimensional
to achieve stability in the Central African Republic; The United Nations
multidimensional Integrated Mission to achieve stability in Mali; United
Nations Mission in the Republic of South Sudan- Temporary UN Security mission
in Abyei; The United Nations multidimensional Integrated Mission to achieve
stability in the Democratic Republic of the Congo; The United Nations and
African Union Hybrid Operation in Darfur; The United Nations Operation in Cote
d'Ivoire; The United Nations Mission in Liberia; The United Nations Mission for
the Referendum in Western Sahara. In the Americas: The United Nations
Stabilization Mission in Haiti. Asia-Pacific: The United Nations Observer Group
militaries in India and Pakistan. Europe: The United Nations Peacekeeping Force
in Cyprus; The United Nations Interim Administration Mission valuable Kosovo.
Middle east: United Nations Disengagement Observer Force (UNDOF); The United
Nations Interim Force in Lebanon; The United Nations Truce Supervision
Organization.
31In 1993, by a decision of the UN Security
Council.
32In 1994, by a decision of the UN Security
Council.
33Established in 2002, according to an agreement
between the United Nations and Sierra Leone.
34The Rome Statute of the International Criminal
Court. http://www.icc-cpi.int/FR_Menus/icc/Pages/defa ult.aspx.
35 he
official website of the International Criminal Court -
http://www.un.org/law/icc.
