How Peace Agreements Undermine the Rule of Law in New War Settings
| Author | Mary Kaldor |
| Published date | 01 May 2016 |
| DOI | http://doi.org/10.1111/1758-5899.12312 |
| Date | 01 May 2016 |
How Peace Agreements Undermine the Rule of
Law in New War Settings
Mary Kaldor
London School of Economics and Political Science
Abstract
This article argues that internationally endorsed peace agreements entrench the restructuring of power relations that take place
in ‘new wars’. It characterizes new wars as ‘mutual enterprises’in which networks of state and nonstate actors engage in violence
for economic and/or political gain. The article shows the way in which such networks subvert efforts to implement a rule of law,
primarily using the example of Bosnia. It argues that efforts to challenge such networks through transitional justice mechanisms
or democratic politics face huge obstacles. It suggests that the role of the international community has been ambiguous, some-
times going with the grain of existing power relations for geo-political reasons or for stability and sometimes upholding human
rights. Only where grass roots actors have directly accessed international justice mechanisms or where local activists have worked
with municipalities have there been some openings. The article concludes by suggesting what a ‘new peace’might involve.
Policy Implications
Instead of top-down peace agreements, peace processes need to engage at multiple levels and with a range of civilian as
well as armed actors if such processes are to provide a basis for a rule of law.
Law and order strategies depend on political legitimacy as much as on specific security and justice sector reform.
Policies aimed at reversing a predatory war economy are a key precondition for sustainable peace and for the establishment
of a rule of law.
In the aftermath of top-down peace agreements, rule of law efforts are very difficult. At the very least, they need to be
complemented by international justice mechanisms and support for civil society.
A joke doing the rounds in Bosnia Herzegovina reworks the
traditional theme of the fisherman and the gold fish. A fish-
erman in Visoko catches a goldfish. The goldfish says that if
he throws him back, he will grant two wishes. ‘Why two?’
says the fisherman ‘It used to be three’.‘Times are different
now,’says the goldfish. So he wishes that his neighbour’s
cow will die and he wishes that his cow will die. ‘Why your
cow?’asks the goldfish. ‘So my neighbour cannot ask me
for milk’he replies.
The story illustrates the negativity and pervasive pessimism
experienced in much of the country. Bosnia, it could be said,
is the archetypal example of the international state-building
agenda in the aftermath of ‘new wars’and in particular
efforts to establish a rule of law. Large amounts of resources,
including a permanent international presence both military
and civilian, have been devoted to the reform agenda and
this has been augmented by the lure of membership in the
EU. Yet Bosnia remains a dysfunctional society where the
legacy of the war continues to affect every day life and the
potential for reigniting violence is never far from the surface.
As Donais says, ‘despite considerable emphasis, and substan-
tial achievements, on the rule of law front in recent years, the
country’s peace process remains as fragile as ever,while few
Bosnians would consider themselves to be inhabitants of a
just society’(Donais, 2013, p. 191).
This essay is about reconstructing a rule of law in ‘new
war’settings. Despite the dramatic increase in rule of law
assistance by international donors in these situations, the
effectiveness of such assistance has been very low. A num-
ber of scholars have argued that the problem is the
emphasis by donors on formal aspects of the rule of law
(the laws, and the legal institutions –police, prisons,
judges and the legal profession) and the failure to take
into account the underlying social norms. Donors have
tended to impose blueprints based on the western experi-
ence without taking into account local cultural and political
factors. My argument is that this gap is not just a matter
of ‘culture’or ‘backwardness’or ‘tradition’. Rather it has to
do with the way that power relations are restructured in
new wars and the rise of what one might describe as
communities of illicit practice or predatory networks who
thrive in such settings and who actively counter rule of
law efforts. They are the actors in what Alex de Waal calls
the ‘political marketplace’(De Waal, 2015), where they bar-
gain for their share of resources, although they clothe
themselves in the garb of extremist ethnic nationalism.
Such ‘spoilers’are not necessarily local or traditional;
indeed they are often the outcome of new wars, processes
of what might be called ‘regressive globalisation’(Shaw,
2003) involving transnational networks of extremism and
©2016 University of Durham and John Wiley & Sons, Ltd. Global Policy (2016) 7:2 doi: 10.1111/1758-5899.12312
Global Policy Volume 7 . Issue 2 . May 2016
146
Research Article
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