lotf2011 | hassane cisse

23 June 2011 | Keynote Presentation | Hassane Cisse | 1

23 June 2011 | 09:45 - 10:15 | Keynote Presentation

Conflict, Fragility and Development in a Globalized World:

Challenges and Implications for the Law of The Future

By: Hassane Cisse

Introductory remarks

Allow me to start by saying what a singular honor it is for me to address such a distinguished audience. I

know that this is the fourth Law of the Future Conference organized by the Hague Institute for the

Internationalisation of Law. I think that this relatively new Conference series has very quickly become a

landmark in the international legal community, and for this reason I would like to commend Sam Muller for

his vision in spearheading this series. The Hague Institute as a research institution that studies the

challenges that globalization poses to legal systems and more specifically themes like rule of law and justice

constitutes a source of knowledge that can be of practical use for a development institution like the World

Bank, which is committed to the promotion of the rule of law and the strengthening of justice institutions.

The theme of this year’s Conference, law’s evolution in the next 20 years, is particularly innovative and

ground-breaking. By juxtaposing law and time, we have to confront a third concept, one which is at the

heart of the work that institutions like mine attempt to grapple with on a daily basis: change. Time passes

and brings new challenges, and law needs to adapt and respond to each one. At the same time law has been

characterized by stability and formality, which makes it difficult to keep pace with our constantly and rapidly

changing 21st century world.

The organizers in their concept note for this event have identified a number of challenges, including: the

decline of the Westphalian system and the emergence of transnational actors and regulations, climate

change and demographics, and new technological breakthroughs. One could add to these the increased

scarcity of resources and environmental degradation faced by vulnerable societies, and from the perspective

of a World Bank official, the increased complexity of the international aid architecture at the global level.

The 2011 World Development Report, the World Bank’s flagship report, highlights a theme that cuts across

all of the above challenges: fragility and conflict. All these challenges can generate and be heightened by

conflict, risking vicious circles that we have seen play out in places as diverse as DRC, Afghanistan and East

Timor. For example, climate change is causing scarcity of natural resources such as water, which in turn

generates conflict over dwindling supply. Viewed in this way, there is a strange tension in the conference

theme: we are discussing the ―law of the future‖ in 20 years. Yet the 2011 World Development Report has

shown that building the rule of law in fragile states is a long process: the average time taken by formerly

fragile states to reach ―non-fragile‖ levels on the rule of law in World Bank governance indicators is 42

years. On the other hand, no low-income, fragile or conflict-affected country (what the WDR calls ―FCS‖) has

yet to achieve a single Millennium Development Goal, which states have committed to achieve by 2015.


In that respect, even in 2030, we are only half way to building rule of law in FCS, but we want FCS to

achieve MDGs 4 years from now.

Fragility and the rule of law go to the core of the mandate of the International Bank for Reconstruction and

Development, which is the oldest of the five legally separate, but affiliated institutions of the World Bank

Group. Although the World Bank is usually associated with ―development‖, one should not lose sight of the

fact that it was originally established to support the reconstruction of Europe in the post World War II

period. The first President of the World Bank, Eugene Meyer, highlighted the close links between

reconstruction and development as early as 1946, placing post-war reconstruction efforts in the context of

―the economic development of the world as a whole… [For] economic distress is a prime breeder of war‖.1

Although it quickly moved from reconstruction to development,2 conflicts continue to occur and have

actually acquired new forms. Thus the operations of the Bank had proliferated in countries affected by

conflict. The ―R‖ in IBRD thus started to obtain a new meaning.3

In today’s address, I propose to use the findings and framing of the WDR to explore this core challenge of

conflict and fragility, its implications for the future of development practice, and what this means for the

―law of the future‖. In other words, I will briefly present:

1) The problem, which is the detrimental impact of conflict and fragility on the rule of law and the

development process;

2) The challenges posed by conflict and fragility to the ―law of the future‖, or more specifically how the

law of the future would need to adapt to combat conflict and fragility; and

3) A sketch of some ways in which the ―law of the future‖ might respond to these challenges.

The Problem: The detrimental impact of conflict and fragility on the rule of law and the

development process

Our world is experiencing a diminishing number of inter-state and civil wars. This is very encouraging in the

present and for the future. Yet violence is not always associated with war. Local violence involving militias

or between ethnic groups, gang violence, local resource-related violence and violence linked to trafficking

(particularly drug trafficking), and violence associated with global ideological struggles can have a serious

impact on governance and the development of states.

In other words, these diverse, but often interlinked, forms of violence result in fragility, or the weakening,

diminishing and destruction of institutions that would otherwise contain conflicts and resolve injustice

peacefully. This definition of fragility constitutes the flip side of what has been defined as ―rule of law‖ by the

UN Secretary General, namely ―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.‖4

1 International Bank for Reconstruction and Development, ―First Annual Meeting of the Board of Governors: Proceedings and Related Documents‖, 15-16 (Washington, D.C.: World Bank, 1946). 2 Edward S. Mason and Robert E. Asher, The World Bank since Bretton Woods 52-53 (Brookings Institution Press 1973). This was mainly due to the development of the Marshal plan by the US, which aimed to support the reconstruction of Europe.

3 Robert B. Zoellick, Fragile States: Securing Development, Speech at The International Institute for Strategic Studies, Geneva, Switzerland (September 12, 2008), available at http://go.worldbank.org/QS00KKG8A0.

4 Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, at para. 6, UN Doc. S/2004/616 (23 August 2004)


But the detrimental impact of conflict and fragility is not confined to the rule of law. The entire development

process is affected. It is not only that no fragile or conflict affected state has yet to achieve a single

Millenium Development Goal. According to the 2011 WDR, on average, a country that experienced major

violence over the period from 1981 to 2005 has a poverty rate 21 percentage points higher than a country

that saw no violence and the average cost of civil war is equivalent to more than 30 years of GDP growth for

a medium-size developing country. This means that conflict and fragility can lead to the loss of an entire

generation of economic progress. And this detrimental impact extends to human development: fragile and

conflict-affected states account for 70 percent of infant deaths, 65 percent of people without access to safe

water, and 77 percent of children absent from primary school.

Fragility does not result in the breakdown of governance, state institutions and rule of law only at the

domestic level. A fragile state can have detrimental impacts internationally—whether at the regional level or

beyond. The most important implication is that a fragile state is usually not in a position to exercise its

rights and duties as a subject of international law, including those related to restricting the use of force,

limiting state violence, ensuring environmental protection and public health.

The challenge: Transitioning out of fragility and conflict through the use of law

These figures highlight the magnitude of the problem of fragility and conflict. Clearly, the time horizons

needed for transitions out of fragility add layers of complexity to the problem. We are confronted with a

situation in which we need the stamina and political will to hold the course, while simultaneously being

flexible enough to adapt to change in face of rapid shifts and transitions in the political economy. In sum,

time presses and a new approach becomes necessary.

However, before sketching a new approach, it is prudent to understand first the importance of the rule of

law in rebuilding fragile and conflict affected states and then the challenges associated with our current

approach towards fragility and conflict.

Briefly put there are two understandings of the rule of law– the ―economic development‖ approach and the

―state-building‖ approach. Although they have been distinct from each other, as the 2011 WDR shows, they

are beginning to converge.

The economic development approach to the rule of law has at its heart a belief that the role of the rule of

law is to support economic growth, predominantly through the framing and enforcement of functioning

markets. These functioning markets provide the basis for growing one’s way out of fragility and conflict--as

the first World Bank president, Eugene Meyer, said in the quote I raised earlier, ―economic distress is a

prime breeder of war‖.

An alternative approach is what I will call the ―state-building‖ approach. This approach sees the rule of law

as a series of principles espoused by the state, re-committing itself to procedural, substantive and human

rights standards (for example, the state being accountable to human rights-compliant laws). The ―rule of

law‖ is tied to the construction of a functioning state and – through its ability to contain conflict - is part of

the establishment of a monopoly over violence. Consequently, justice interventions focus primarily on

strengthening the capacity of state law and institutions, while bringing substantive laws into compliance with

international human rights standards. This has been driven by the legacies of terrible conflicts and their

immediate aftermaths – particularly those faced by UN missions responding to unprecedented demand for

peace interventions – from Haiti to the Balkans, El Salvador to East Timor. As a result of these contexts,

justice and the rule of law have been seen as part of immediate peace-building activities and the


establishment of stability and control. Building justice institutions in the broader sense – for example, an

institution to handle grievances around core areas of stress, such as service delivery or land and natural

resource management – drops down the priority list and gets deferred. The legacy of many of these

interventions include state of the art court houses and prison facilities, but little attention to the gaping

wounds of grievance at the local level that may have led to violence in the first place.

Given the long time it takes to establish or re-establish a rule of law system, in order to think about the law

of the future, we need to think about the sufficiency of the approaches to conflict and fragility of today. I

would suggest that both of these approaches have a great deal to learn from each other. I would also

suggest that the two approaches suffer from three common flaws: (i) state-centrism, (ii) seeking

organizational best-practice, and (iii) short time horizons. Firstly, with regard to state-centrism, we in the

broad rule of law community are often focused on formal state institutions for a variety of reasons, from our

institutional mandates, to the nature of our government partners, to our expertise. Yet in fragile and conflict

affected states these state institutions are often but one part of the landscape of justice institutions in which

ordinary users or citizens operate. They may turn for justice to religious courts, customary authorities,

traditional leaders, or even personal relationships with a local public official. We must engage effectively

with the user’s perspective, rather than focus entirely on particular institutional forms. Second, such states

are by definition extremely complex, as fragility and violent conflict inherently go ―beyond the norm‖. If we

seek best practice and solutions that can be transplanted from one country to another, we are ignoring this

complexity and reducing our chances of success. Third, we know that the donor community generally has

time horizons that are somewhat short; we often expect significant institutional and cultural change over a

period of months or a few years. However, the WDR has helped us establish that we need to engage in the

long run in order to be successful.

A Sketch of a New Design: How could the law of the future respond to the challenge of conflict

and fragility?

The 2011 WDR provides a moment for change, particularly from the World Bank perspective. How might we

respond to the challenges laid out above, while benefitting from the insights afforded by those actors –

especially from the UN – who have engaged with justice institutions in conflict affected states using a model

different from our own? We can and will strengthen existing partnerships and build new ones to take on

board some of the aims of the ―state-building‖ actors within the context of our mandate and comparative

advantage. We can build on the first steps that we have already taken over the past few years. For example,

we are working with Afghan justice authorities in the implementation of the Justice Sector Reform Project in

Afghanistan. We can also leverage our capacity as a ―knowledge Bank‖ to challenge some of the shared

limitations in models and use our partnerships to push for sustainable change in how development actors do

business on the rule of law in FCS. This is also the goal of a major initiative spearheaded by the World

Bank’s Legal Vice-Presidency, namely, the Global Forum on Law, Justice and Development, which is

designed to capture, co-generate, exchange and disseminate innovative legal solutions for development.

Legal innovation with respect to the use of the rule of law in FCS will be critical to effective responses to the

fallout from the recent events in the Middle East. Initial reporting has indicated that issues pertaining to

perceptions of inequity and injustice were key drivers of many of the popular movements that arose in that

area. We need to be innovative and flexible in our responses, and draw lessons from successful attempts to

mitigate injustice. These lessons can help us provide better policy advice and services to member countries

so that they might reform in time to avoid violence, which will be central to ―the law of the future‖.

I would like to take this opportunity to outline three ―C’s‖ as possible keystones of these sorts of effective

responses – ―context‖, ―cross-cutting‖ and ―cross-community‖:


(1) Context: as highlighted above, FCS are often sites of social fracture and heavy legal pluralism. This

means that an effective understanding of local context is essential before developing policy or

operations. This will require improved capacity to conduct analytics and integrate them into

operational frameworks. For example, the World Bank’s Justice for the Poor program has generated

research around local-level gender and justice dynamics to inform Indonesian access to justice

legislation. Engaging with context will also require long time horizons for reform. Understanding the

length and complexity of transitions out of fragility and conflict will require donors and states to

build foundations for sustainable state-society compacts and to be modest about expected results.

(2) Cross-cutting: justice and the rule of law cannot be sectoralized. Events in the Middle East have

shown how feelings of pervasive injustice by the population and violent uprisings can be indelibly

linked. Mahatma Gandhi has taught that ―an unjust law is itself a species of violence.‖ Thus one

form of ―violence‖ (a legal system perceived as unjust) breeds another one (violent revolt). These

events have also shown how injustice can arise anywhere, and can often be remedied outside a

courtroom just as effectively as inside one. As a result, we must be better at mainstreaming justice

into development operations in FCS. FCS often have fragile or non-existent social pacts; as a result,

new and innovative ways have to be found to manage conflicts and provide for accountability if the

rule of law is to be established, often with a great deal of local specificity. The World Bank’s Justice

for the Poor and justice and conflict team is developing justice aspects of basic service delivery

projects, especially health services, in Nigeria and Sierra Leone.

(3) Cross-community: While some actors and the state will strengthen formal institutions, and others

will deal with heavily localized issues (for example, around mines), building sustainable rule of law

will require action at a level between the national and the community – the ―cross-community‖ or

―meso‖ level. This might entail strengthening local public administrative bodies, or supporting links

between traditional dispute resolvers and local government authorities around health or other

sectoral disputes. This involves building links between national and local, formal and informal, and

so on. These links re-establish the connections between state and society. As a result, this approach

re-forges the state-society compacts that the WDR stresses are at the core of transitions out of

fragility.

What do these mean in practical, concrete terms? On this, I am only able to speak of my own institution. In

that context, I would suggest that we need to be more open to experimentation in the types of knowledge

we engage with and the sorts of policy and operational work we do in support of FCS. Specifically, I would

suggest that we need to:

1) Broaden our base of expertise on these issues to give us a much more refined understanding of

context and the cross-cutting nature of justice. This might include historians, psychologists,

sociologists, anthropologists, communications specialists etc.

2) Put in place the capacity to generate targeted operational and policy frameworks that are sensitive

to the specific needs of the country. The newly-established World Bank’s Center for Conflict,

Security and Development is a good first step towards this, but we will need to be very effective in

strengthening partnerships with donors and other actors to ensure that country needs are being

met.

3) Be prepared to go beyond the state in our operational and policy work to build cross-community

links and engage with local realities, decentralized authority and legally-plural contexts.


These approaches are not without practical challenges. I highlight two of them here:

(1) The lack of state capacity to engage in policy discussions. Activities may focus on the meso-level

and be context-specific. This would in the ordinary course of business require a state with a deep

capacity to engage with donors – right down to local public administrators. As this is unlikely to be

the case in FCS, we need to deal with this constraint. This might be through building this capacity –

for example, through public sector management/civil service reform. This might be through

improving our analytics and understanding of our counterparts’ limitations. And this might be

through partnerships, relying on our partners who can engage with local levels on a more effective

and less technical basis than ourselves.

(2) The need to build donor capacity to understand the justice facets of each and every sector. This will

require improved human capital among donors – developing guidance and training will be essential,

as will building the operational capacity to act on it.

Conclusion

As I mentioned earlier, we have been guided to look to 2030 by the organizers. However, in order to

respond to the challenges posed over the coming years, I would suggest that we ought to consider a more

differentiated timeline. For when the law of the future comes into contact with conflict and fragility, a 20-

year time horizon may not be realistic. However, I would like to end on a more optimistic note. If we see

transitions out of conflict and fragility as just that – transitions, or iterative processes of institutional

strengthening – we can be more humble in our goals and look to achieve checkpoints along the way. For

example, we might be in a position to do the business of law and development in FCS better. By 2030, we

can commit to more effective partnerships, better thinking around justice and the mainstreaming of justice

into all aspects of the development portfolio for FCS. We at the World Bank are committed to broadening our

engagement with partners on justice to take into account a range of different disciplines. And I would urge

the Hague Institute to commit, with us, to promoting space for knowledge development, debate and

partnership to generate new operational and policy frameworks that might guide our hand when seeking to

support the rule of law in FCS. We may not be able to build rule of law quickly, but we can take quick action

to ensure that we do our work better and more effectively.

The task ahead is very difficult and may seem insurmountable, but as Nelson Mandela has said: ―it always

seems impossible until it’s done.‖