Remarks by Ivan Šimonović,
United Nations Assistant Secretary-General for Human Rights

14 April 2015, Doha, Qatar

Excellencies, ladies and gentlemen,

It is a great pleasure to be here today together with other rule of law partners to discuss with you how the UN can better provide support to Member States in the area of police, justice and corrections.

The UN partners standing in front of you represent the three pillars of the United Nations: peace and security, development and human rights. In the past ten years, strengthening the rule of law has become a major feature of any effort to ensure sustainable achievements in these three areas. The UN has stepped up its programs to assist national authorities to strengthen rule of law institutions. The global focal point arrangement, in which OHCHR participates, aims to provide more coherent and efficient assistance from the UN.

Before proceeding, I would like to say a few words on the confusion which prevails all too often between the three competing visions of the rule of law:

First, institutional rule of law ­– a view that focuses mainly on measures by law enforcement and security institutions. It is rather, “law and order” than the rule of law.

Second, procedural rule of law, is a legalistic vision that narrows on ensuring that laws are properly enacted by a competent authority, public, non-retroactive and so on. It is rather “rule by law” than rule of law focussing on protection from the capricious exercise of power. But it says nothing on the content of laws. All of us know that some laws may be unjust – apartheid laws, for example.

Thirdly, the substantive rule of law encompasses compliance with human rights norms and standards. In addition to procedural concerns, this substantive understanding requires that laws be just and enforced justly. This vision reflects the concepts of equality and non-discrimination in a substantive way: not only is no-one above the law, but everyone is equal before and under the law, and is entitled to its equal protection and equal benefit. These distinctions are not merely theoretical: only this vision of the rule of law prevents a law from being enacted to permit torture, or to deprive women, or members of ethnic minorities of the right to vote.

Ladies and gentlemen,

After years of experience, serious questions remain regarding the impact of international assistance in the rule of law area. In order to be successful and produce the expected return, rule of law assistance must be based on sound human rights foundations, because they are what ensure that it will be effective. When the UN provides support to the rule of law, it must take into account both the software and the hardware. If the hardware – more police officers, more prison cells, more court rooms – is not accompanied by high quality software – just laws, and enforcement officers who are even-handed, trustworthy and who protect human rights – we risk harming rather than helping the substantive, real rule of law.

Impartial assessments of the challenges and gaps facing justice, police and corrections institutions are made by international human rights mechanisms – including treaty bodies and the Human Rights Council, through its Special Procedures and the Universal Periodic Review process – and through human rights monitoring of rule of law institutions on the ground. Such assessments should be the basis for planning international rule of law assistance programmes and national initiatives.

OHCHR provides assistance to member states and national stakeholders to develop this quality "software" for the rule of law. For instance, in the area of corrections reforms, in Afghanistan, where I will be going in a couple of days, the regular analysis and assessment by UNAMA's human rights team of detention, including cases of arbitrary detention, torture and ill-treatment of conflict-related detainees have assisted the Ministry of Justice, the National Security Directorate, the Presidency and international partners to identify challenges and gaps, and to take measures to address them. These have included, for example, a Presidential decree adopted in 2013 which banned torture, increased inspection visits, and set up training programs for alternative techniques of interrogation. This subsequently resulted in a verified 14% reduction in torture cases in detention.

Chairperson, dear colleagues,

Putting a stop to impunity is a critical element for peace and rebuilding the rule of law.

Where there is no justice for victims, and where violations continue, conflict is more likely to reoccur. The signing of a peace agreement provides a short window of opportunity to send a strong signal to perpetrators, and to the people, that the rules of the game have changed, and crime will no longer go unpunished. However, post-conflict states often face serious challenges in immediately addressing impunity, not least because their justice systems have been weakened during conflict.

OHCHR partners with national judicial authorities to build their capacity to carry out prosecutions of serious human rights violations, and to provide access to justice for victims. In the Democratic Republic of the Congo, one striking example of what such partnership can produce is the case of Lieutenant Colonel Bedi Mobuli Engangela, better known as ‘Colonel 106’, who was sentenced to life in prison for committing crimes against humanity last December. Another is the conviction of General Kakwavu to 10 years for rape and war crimes.

In both cases, the UN Joint Human Rights Office in DRC provided assistance to the national judicial authorities in their investigations, by providing expertise and logistical support to the military prosecutor and by sharing, confidentially, information gathered in field investigations. This resulted in the arrest warrant.

Subsequently, the UN Joint Human Rights Office, working with other international and national partners, provided important assistance for the identification of some 900 victims during preliminary investigations. We worked closely with the authorities to set up a witness protection system, so that victims and eyewitnesses could testify at the trial that led to these landmark convictions.

Real national commitment to rule of law reform also requires trust among the population, in particular among victims of human rights violations. How can such trust be rebuilt in a post-conflict society where there has been no confidence in the ability to solve conflicts through legal channels?

Here, an important first step is to support credible transitional justice processes. In the past 10 years, OHCHR has developed expertise in assisting national authorities and civil society groups to develop transitional justice processes based on sound international standards. Most recently, in Tunisia, our office provided legal advice for the drafting of the law on transitional justice which was adopted in December 2013. We helped the Truth and Dignity Commission to draw up its rule of procedures, which were adopted in December 2014, and built the capacity of Commission members through training on statement-taking and truth-seeking. Over recent years, OHCHR has also supported transitional justice processes in Togo, Cote d’Ivoire, Uganda, Kosovo, Brazil, Colombia and Guatemala, among others.

Ladies and gentlemen,

OHCHR together with the other focal point partners, stands ready to support member states to ensure that we deliver on the global promise that people everywhere have the right to live under the rule of law, in the true sense of the term. Let me remind you, what we contribute to the rule of law is absolutely essential: justice.