"Justice and the Rule of Law: the UN Role"
Statement by Ambassador Ronaldo Mota Sardenberg
Permanent Representative of Brazil to the UN
Security Council, New York, 6 October 2004
My delegation wishes to thank you for convening this open debate on the issue of justice and the rule of law. We are grateful to the Secretary-General for his thorough report on this ever more important topic and for the concrete recommendations he has put forward. I should also like to thank the Chilean delegation for having organized an “Arria Formula” briefing together with representatives of non-governmental organizations who provided many valuable and insightful comments on the subject. Last but not least, I should also like to thank Special Adviser Juan Méndez for his highly valuable participation in our meeting.
Brazil fully supports the Secretary-General’s statement to the General Assembly on 21 September. It is indeed our major responsibility to instill, uphold and restore greater respect for the rule of law not only at home but also throughout the world. In particular, all Member States have an unquestionable and overriding duty to abide by the UN Charter and, in the present case, by international human rights, humanitarian, refugee and criminal law.
May I add that we took note with interest of the points raised by the Secretary-General in his report, and specifically when he comments that “[w]e must learn […] to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments , national participation and national needs and aspirations”.
Much can be done by the UN in the domain of the rule of law. Mandates recently adopted by the Council include important rule of law and justice components in missions such as Côte d’Ivoire, Liberia and Haiti. In those multidimensional peacekeeping operations, the UN plays a major role in formulating and implementing long-term post-conflict initiatives not only towards development and democracy but also in relation to the strengthening of the rule of law. All of these objectives are interdependent and mutually reinforcing, and contribute to build sustainable peace in war-torn societies.
Under the rule of law, tensions and conflicts are likely to steer towards peaceful settlements. Where an independent and impartial judiciary is functioning, justice tends to be pursued and done, rules are fairly applied and, as a result, people trust their legitimate institutions. If this framework is employed in a post-conflict setting, the cycle of violence can be broken and the recurrence of conflicts can be effectively prevented.
Adherence to the rule of law entails the observance of the principles of equality before the law, separation of powers, democratic governance, social justice, among other fundamental precepts.
The rule of law must be consistent with international human rights norms and standards. Respect for human rights, the most effective course to establish restrictions on governmental power and to curb the “tyranny of the majority”, is even more imperative in post-conflict scenarios where the protection of persecuted minorities is urgently needed.
Helping shattered societies re-establish the rule of law and address past abuses in order to achieve reconciliation involves a range of complexities. It is a critical task that in many settings also requires the engagement of the international community.
On the subject of transitional justice in post-conflict societies, some key issues should be highlighted. We need carefully to consider the particular rule of law and justice needs in each country. Local consultation and ownership are very important elements, especially in what concerns the victims themselves.
The dynamic is different in each experience and a distinct and calibrated combination of mechanisms will be required. For instance, it is necessary to make the relationship between courts and truth commissions conform to specific situations. Reparations programs to victims of gross violations of human rights are also an essential element, as well as vetting processes. At the same time that we take into account the rights and needs of victims, we must recognize and respect the rights of accused persons.
We have already expressed our view that reconciliation efforts are compromised when the legacy of past violence is left unaddressed. True reconciliation requires a delicate balance between the values of justice and peace. Together with democracy, those values are indeed mutually reinforcing imperatives, as mentioned in the report, and it is possible to promote all three in fragile post-conflict settings. To do so, the sensible timing and sequencing for implementation of transitional justice processes need to be borne in mind.
Brazil has wholeheartedly supported the establishment of the International Criminal Court (ICC), a permanent and independent tribunal to promote the rule of law and ensure that the gravest and most heinous international crimes do not remain unpunished. Now that the ICC is starting its work and is becoming able to provide long-term and robust deterrence, the confidence we have deposited in its effectiveness should be borne out. Ultimately, the full credibility of the Court is directly proportional to its universality. We therefore encourage all States that have not done so to accede to or ratify the Rome Statute at the earliest opportunity. Today, the ICC counts nearly 100 State Parties.
We welcome the fact that the report rejects any endorsement of amnesty for genocide, war crimes, or crimes against humanity, and ensures that the UN does not establish or directly participate in any tribunal for which capital punishment is included among possible sanctions.
The UN family as a whole has plenty of experience and expertise in the field of the rule of law. It is necessary to take advantage of such and ensure that lessons of the past be applied and built upon. We fully concur with the report in that the past can only serve as a guideline and that pre-packaged solutions are unwise: successful experiences can only be a starting point to address issues in different contexts.
The UN can do more to assist and help countries emerging from conflict. We must give serious consideration to the Secretary-General’s recommendations, such as setting up a roster of transitional justice experts and guaranteeing that they receive appropriate pre-deployment training. But we can only achieve tangible results only with the necessary financial resources and highly qualified personnel for a solid investment in justice and the rule of law, which requires a viable and sustainable funding mechanism.
Brazil has always favored a comprehensive approach that underscores the developmental nature of the rule of law in order to enhance the provision of support to countries for national capacity-building, a primary strategy in strengthening the rule of law.
On my delegation’s initiative, on behalf of Mercosur, and with 141 cosponsors in total, the General Assembly adopted in 2002 resolution 57/221 on the strengthening of the rule of law. On that occasion, we all recognized the role played by the Office of the High Commissioner for Human Rights (OHCHR) in supporting national efforts to strengthen the institutions of the rule of law. We all expressed our deep concerns about the scarcity of means at the disposal of the OHCHR for the fulfillment of its tasks.
In this respect, it is regrettable that the UN continues to lack sufficient funds to provide any substantial financial assistance to national projects that have direct impact on the realization of human rights and the maintenance of the rule of law in countries that are committed to those ends but still require the necessary means and resources.
The UN system, in particular the OHCHR, should be given more resources to work with countries to strengthen national human rights institutions and to provide assistance, inter alia, in programs related to training of police, prosecutors, judges, lawyers and prison officers.
Thank you, Mr. President.