The World Bank s Rule of Law Work in Post-Conflict Environments Klaus Decker Counsel Justice Reform Practice Group Lega

1. The World Bank’s Rule of Law Work in Post-Conflict Environments Klaus Decker Counsel Justice Reform Practice Group Legal Vice-Presidency Three key messages: Both fields are still evolving. Both fields are still evolving separately. We try to link them better.Three key messages: Both fields are still evolving. Both fields are still evolving separately. We try to link them better.

2. The way the World Bank approaches post-conflict work has been constantly evolving.The way the World Bank approaches post-conflict work has been constantly evolving.

3. Conflict is core Bank business. Focus is shifted from rebuilding infrastructure to economic and social stability. OP outlines levels of Bank engagement in different conflict settings: In all member countries: promote social cohesion, institutional capacity building and good governance, minimize potential causes of conflict; In areas affected by conflict: (i) continue efforts at poverty reduction and maintenance of socioeconomic assets where possible; (ii) advise on the socioeconomic impacts of emergency assistance; and (iii) analyze the impact of conflict on development and prepare for renewed assistance In areas emerging from conflict: (i) facilitate the transition to peace; (ii) support socio-economic recovery through investment and macro-economic policy advice; (iii) advise on socioeconomic impacts of reconstruction policies on development.Conflict is core Bank business. Focus is shifted from rebuilding infrastructure to economic and social stability. OP outlines levels of Bank engagement in different conflict settings: In all member countries: promote social cohesion, institutional capacity building and good governance, minimize potential causes of conflict; In areas affected by conflict: (i) continue efforts at poverty reduction and maintenance of socioeconomic assets where possible; (ii) advise on the socioeconomic impacts of emergency assistance; and (iii) analyze the impact of conflict on development and prepare for renewed assistance In areas emerging from conflict: (i) facilitate the transition to peace; (ii) support socio-economic recovery through investment and macro-economic policy advice; (iii) advise on socioeconomic impacts of reconstruction policies on development.

4. The LICUS initiative was launched in the aftermath of September 11th, 2001. “LICUS” means “low income countries under stress”. These are fragile states with weak policies and institutions. We talk about around 30 countries. Three out of four LICUS are affected by on-going armed conflict. Traditional aid programs have not worked well in these environments, and in some countries, many donors, including the Bank, have disengaged. The LICUS Initiative promotes innovative approaches and linkages between research, policy debates and country operations. The initiative established the LICUS Trust Fund as targeted finance facility. In 2005, the Board confirmed the LICUS Initiative, renamed it Fragile States Initiative and replenishes the Trust Fund with Bank surplus.The LICUS initiative was launched in the aftermath of September 11th, 2001. “LICUS” means “low income countries under stress”. These are fragile states with weak policies and institutions. We talk about around 30 countries. Three out of four LICUS are affected by on-going armed conflict. Traditional aid programs have not worked well in these environments, and in some countries, many donors, including the Bank, have disengaged. The LICUS Initiative promotes innovative approaches and linkages between research, policy debates and country operations. The initiative established the LICUS Trust Fund as targeted finance facility. In 2005, the Board confirmed the LICUS Initiative, renamed it Fragile States Initiative and replenishes the Trust Fund with Bank surplus.

5. World Bank and rule of law Rule of law/Justice reform Cross-cutting issue that can be addressed from different angles: Good governance Rule of law as an element of good governance Empowerment Law and Justice in Social Development Work Private Sector Development Rule of law as key element of investment climate

6. World Bank and rule of law Four roots of an evolving field: Promotion of democracy Development assistance Promotion of human rights and social justice International law enforcement (1) Promotion of democracy Judicial independence More efficient administration of justice Focus on state institutions (2) Development assistance Bad governance undermines development Top down Economic focus Improve conditions for foreign investment (3) Promotion of human rights and social justice Human rights advocacy NGO driven Legal empowerment Bottom up (4) International law enforcement “War on drugs” “War on terror” Criminal law focus Driven by law and order considerations (1) Promotion of democracy Judicial independence More efficient administration of justice Focus on state institutions (2) Development assistance Bad governance undermines development Top down Economic focus Improve conditions for foreign investment (3) Promotion of human rights and social justice Human rights advocacy NGO driven Legal empowerment Bottom up (4) International law enforcement “War on drugs” “War on terror” Criminal law focus Driven by law and order considerations

7. World Bank and rule of law Who works on justice reform in the World Bank? Legal Vice-Presidency Advisory lawyers Country lawyers Poverty Reduction and Economic Management Network (PREM) Public Sector Group (PRMPS anchor) PREM Network members in the regions Environmentally and Socially Sustainable Development Department (ESSD) ESSD staff across the regions SDV (anchor) Private Sector Development (PSD) International Finance Corporation (IFC) Development Economics Research Group (DEC) World Bank Institute (WBI) Human Development Department (HD) Etc. etc. etc. Legal and judicial reform is scattered all over the World Bank.Legal and judicial reform is scattered all over the World Bank.

8. World Bank and rule of law Reforming courts and other justice institutions Contributing to civic education and public information Expanding access to justice Current areas of justice reform in the Bank are: Reforming Courts and other justice institutions legal framework organization and structure strategic planning case management human resources management facilities management training 2. Civic education and public information civil society organizations media campaigns bar associations law schools 3. Expanding access to Justice alternative dispute resolution mechanisms mobile courts local level dispute resolution informal/customary dispute resolution legal aid Current areas of justice reform in the Bank are: Reforming Courts and other justice institutions legal framework organization and structure strategic planning case management human resources management facilities management training 2. Civic education and public information civil society organizations media campaigns bar associations law schools 3. Expanding access to Justice alternative dispute resolution mechanisms mobile courts local level dispute resolution informal/customary dispute resolution legal aid

9. World Bank and rule of law Some numbers about justice reform: 29 Freestanding Projects 37 Institutional Development (IDF) Grants 7 Japanese Social Development Fund (JSDF) Grants Hundreds of Justice components in sector specific projects

10. How to link ‘conflict’ and ‘justice’ Joint research and support: Analytical work Planning support Very little is done for the time being to join our efforts in terms of analytical work and planning support, but we are working on it. Together with the Conflict Prevention and Reconstruction Unit in the Social Development Department, the Justice Reform Practice Group is working on a desk study to review operational initiatives and relevant policy frameworks of justice reform in post-conflict countries. This will hopefully be the starting point for a more thorough cooperation.Very little is done for the time being to join our efforts in terms of analytical work and planning support, but we are working on it. Together with the Conflict Prevention and Reconstruction Unit in the Social Development Department, the Justice Reform Practice Group is working on a desk study to review operational initiatives and relevant policy frameworks of justice reform in post-conflict countries. This will hopefully be the starting point for a more thorough cooperation.

11. How to link ‘conflict’ and ‘justice’ Mainstreaming both fields in strategies: Poverty Reduction Strategy Paper Country Assistance Strategy Interim Strategy Notes During the preparation of most strategies, both ‘conflict’ and ‘justice’ experts are at the same table, but the topics are not systematically linked. Poverty Reduction Strategy Papers (PRSP): Both the conflict people as well as the justice reform specialists provide support to the development of PRSPs that take or do not take into consideration both fields. Country Assistance Strategy (CAS): The CAS is a bilateral document which lays out the strategy of World Bank development assistance to a specific country. Conflict as well as justice reform experts work hard at having both areas reflected. Interim Strategy Notes: They are short to medium term assistance strategies for countries emerging from conflict. They generally reflect objectives and sequencing of priorities in peace accords and recovery plans.During the preparation of most strategies, both ‘conflict’ and ‘justice’ experts are at the same table, but the topics are not systematically linked. Poverty Reduction Strategy Papers (PRSP): Both the conflict people as well as the justice reform specialists provide support to the development of PRSPs that take or do not take into consideration both fields. Country Assistance Strategy (CAS): The CAS is a bilateral document which lays out the strategy of World Bank development assistance to a specific country. Conflict as well as justice reform experts work hard at having both areas reflected. Interim Strategy Notes: They are short to medium term assistance strategies for countries emerging from conflict. They generally reflect objectives and sequencing of priorities in peace accords and recovery plans.

12. How to link ‘conflict’ and ‘justice’ Using the same tools: Joint Assessment Mission Transitional Results Matrix Conflict Analysis Framework Most of the tools used by the ‘conflict’ specialists have integrated ‘justice’ or ‘rule of law’ considerations. Joint Assessment Mission (JAM): They determine funding needs and often serve as centerpiece for donor conferences and longer-term reconstruction plans. Example: Sudan. Transitional Results Matrix: It allows for planning and sequencing of government programs in fragile states, supported by multi donor approaches. Example: Liberia Conflict Analysis Framework: Helps the design of conflict-sensitive approaches for Bank-supported strategies, policies and programs by focusing on ‘drivers of conflict’. Example: SomaliaMost of the tools used by the ‘conflict’ specialists have integrated ‘justice’ or ‘rule of law’ considerations. Joint Assessment Mission (JAM): They determine funding needs and often serve as centerpiece for donor conferences and longer-term reconstruction plans. Example: Sudan. Transitional Results Matrix: It allows for planning and sequencing of government programs in fragile states, supported by multi donor approaches. Example: Liberia Conflict Analysis Framework: Helps the design of conflict-sensitive approaches for Bank-supported strategies, policies and programs by focusing on ‘drivers of conflict’. Example: Somalia

13. How to link ‘conflict’ and ‘justice’ Using the same funding mechanisms: LICUS Trust Fund/Post-Conflict Fund Multi Donor Trust Funds International Development Agency (IDA) credits and grants LICUS Trust Fund: This trust fund aims to support early entry points for reform, primarily through capacity building and delivery of basic services. Eligible activities include capacity building to support governance reform. Post-Conflict Fund: This trust fund allows for speedy and flexible funding of innovative work that cannot be financed under regular Bank instruments. It supports planning, piloting, and analysis of reconstruction activities by government and partner organizations. Between 1998 and 2004, $66.5 million approved in 166 grants to 38 countries. Multi-Donor Trust Funds: They capitalize on the Bank’s comparative advantage in donor coordination. They mobilize resources and provide a venue for systematic consultations with contributing donors. Examples include: Bosnia-Herzegovina, Timor Leste, Iraq, Afghanistan and Sudan. IDA credits and grants: The post-conflict IDA window allows for exceptional grant allocations to post-conflict countries. Normally, IDA allocation is performance-based. For post-conflict countries, the basis is provided by post-conflict progress indicators, which calibrate IDA’s response to post-conflict phases. Example: Haiti (under preparation)LICUS Trust Fund: This trust fund aims to support early entry points for reform, primarily through capacity building and delivery of basic services. Eligible activities include capacity building to support governance reform. Post-Conflict Fund: This trust fund allows for speedy and flexible funding of innovative work that cannot be financed under regular Bank instruments. It supports planning, piloting, and analysis of reconstruction activities by government and partner organizations. Between 1998 and 2004, $66.5 million approved in 166 grants to 38 countries. Multi-Donor Trust Funds: They capitalize on the Bank’s comparative advantage in donor coordination. They mobilize resources and provide a venue for systematic consultations with contributing donors. Examples include: Bosnia-Herzegovina, Timor Leste, Iraq, Afghanistan and Sudan. IDA credits and grants: The post-conflict IDA window allows for exceptional grant allocations to post-conflict countries. Normally, IDA allocation is performance-based. For post-conflict countries, the basis is provided by post-conflict progress indicators, which calibrate IDA’s response to post-conflict phases. Example: Haiti (under preparation)

14. What are the challenges? Main challenge: Both fields are still evolving in the World Bank.

15. What are the challenges? There are things the World Bank does not do… The World Bank’s mandate Legal opinion on criminal justice White area Black area Grey area The Bank’s Articles of Agreement prohibit the institution from interfering in political affairs of their member states. The interpretation of this prohibition has evolved over time. In the early 1990s, the Bank started working on governance issues. Previously, this was believed to be too political and thus outside of the Bank’s mandate. However, some areas continued to be considered outside of the Bank’s mandate. Most prominently: criminal justice reform, police and prisons. You realize how important these topics are in a post-conflict environment. It is only over time that the World Bank has realized how artificial these boundaries are. Example: Court rehabilitation with exception of the prison cell. Case management for courts that deal with civil and criminal cases. Distinction between civil sanctions and criminal sanctions. Since these boundaries do not reflect real life situations, people in the Bank started working on criminal justice topics, but named them something else, like “building a culture of peace”. There was a dire need for clarification and clear guidelines. That is why the World Bank’s General Counsel issued a legal opinion about his interpretation of the Bank’s Articles of Agreement when it comes to the Bank’s work on criminal justice. He identifies activities that the Bank can legally engage in, and others where the Bank cannot. However, it turns out that between these two there is a huge grey area of activities that the Bank can legally engage in, but where staff would need clear guidance as well as risk management and quality insurance mechanisms. White area: Research, health projects for prisoners and police, case management systems for general jurisdiction courts Black area: Financing of weapons and other lethal equipment, specific case enforcement as opposed to general capacity building. Grey area: They merit particular attention. Financing of policing, prosecutors and prisons.The Bank’s Articles of Agreement prohibit the institution from interfering in political affairs of their member states. The interpretation of this prohibition has evolved over time. In the early 1990s, the Bank started working on governance issues. Previously, this was believed to be too political and thus outside of the Bank’s mandate. However, some areas continued to be considered outside of the Bank’s mandate. Most prominently: criminal justice reform, police and prisons. You realize how important these topics are in a post-conflict environment. It is only over time that the World Bank has realized how artificial these boundaries are. Example: Court rehabilitation with exception of the prison cell. Case management for courts that deal with civil and criminal cases. Distinction between civil sanctions and criminal sanctions. Since these boundaries do not reflect real life situations, people in the Bank started working on criminal justice topics, but named them something else, like “building a culture of peace”. There was a dire need for clarification and clear guidelines. That is why the World Bank’s General Counsel issued a legal opinion about his interpretation of the Bank’s Articles of Agreement when it comes to the Bank’s work on criminal justice. He identifies activities that the Bank can legally engage in, and others where the Bank cannot. However, it turns out that between these two there is a huge grey area of activities that the Bank can legally engage in, but where staff would need clear guidance as well as risk management and quality insurance mechanisms. White area: Research, health projects for prisoners and police, case management systems for general jurisdiction courts Black area: Financing of weapons and other lethal equipment, specific case enforcement as opposed to general capacity building. Grey area: They merit particular attention. Financing of policing, prosecutors and prisons.

16. What are the challenges? Reminder: Some UN-DPKO lessons Establish rule of law as a core priority in mission planning… Provide sufficient resources… Develop a “One UN Approach”… Bolster HQ capacity to provide adequate support…

17. The End THANK YOU