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A/CONF.187/1.
V.99-90948 (E)
United Nations A/CONF.187/3
Tenth
United Nations Congress
on the Prevention of Crime
and the Treatment of
Offenders
Vienna, 10-17 April 2000
Distr.: General
14 December 1999
Original: English
Item 3 of the provisional agenda
*
Promoting the rule of law and strengthening
the criminal justice system
Promoting the rule of law and strengthening the criminal
justice system
Working paper prepared by the Secretariat
A/CONF.187/3
2
I. Introduction
1. The present paper is intended to inform and stimulate
discussion about the rule of law, with a focus on issues that
are important for the development and maintenance of
effective criminal justice systems. It will be seen that there
are differing concepts of the rule of law and that taken
broadly it covers a very wide range of legal and social
issues. To permit discussion on a uniform basis, the paper
therefore begins with a discussion of the nature of the rule
of law and in particular those elements of greatest impor-
tance for criminal justice. It then considers the significance
of the rule of law as a goal of sustainable development and
as a means of supporting the achievement of other
development goals. Offences involving terrorism,
corruption and organized crime raise unique problems for
the rule of law, and these are considered. Transnational
crime, which may or may not be committed by organized
criminal groups, also constitutes a new challenge to
conventional models of the rule of law because the rule of
law is based on a traditional framework in which sovereign
powers, including those to make, enforce and administer
the law, are exercised at the national level. The advent of
new transportation and communication technologies
creates the potential for increases in transnational crime.
The reaction of the international community, and the
challenges that it may face in the future, are discussed in
terms of the rule of law.
II. Background
2. Discussion of the rule of law occupied criminologists
during much of the latter half of the twentieth century. It
was seen as a remedy for human rights abuses and, for a
time, the debate between the legalities of the rule of law
and socialism was a battleground of the cold war. Towards
the close of the century, the rule of law became a focus for
development projects, which saw it as a means of suppor-
ting the implementation of economic and human rights
reforms and, on occasion, as an end in itself. Practical
experience with such development eventually led to a more
realistic assessment of the difficulties of developing the
rule of law and to the realization that it is the rule of law in
practice, and not in theory, that matters. It also led to
serious questions about the nature of the rule of law not
only as a legal construct, but as a much broader framework
of social values and cultural beliefs that are difficult to
analyse in theory and even more difficult to develop in
practice.
3. The rule of law in criminal justice systems was
largely overlooked in discussions about sustainable
economic development and was often addressed only
tangentially in discussions about the protection of human
rights. The idea that rule of law reforms would generally
make criminal justice systems actually work better, by
making them both more effective as crime-control systems
and more just and protective of human rights, has not
figured prominently in the debate thus far. This is sur-
prising, since the rule of law is arguably more important in
criminal matters than in many other areas of the law.
“The legality ideal confronts its sternest tests in the
area of criminal justice. This is true for at least two
reasons: First, the implications of arbitrary exertions
of state power are particularly somber here because
of the severity of the sanctions administrated by the
criminal law and the status-degrading potency of
criminal proceedings. Second, the threat of crime and
the outrage it produces tempt officials to perpetrate
and the public to approve carelessness toward and
sometimes disregard of the legality of their efforts at
crime suppression.”
1
4. To this might be added another more fundamental
concern. The very nature of the criminal justice systems
and sanctions makes them the ultimate instrument for
turning the rule of law itself into a mechanism of repres-
sion for political, social, economic or other purposes.
III. Nature of the rule of law
5. Perhaps the most important point that must be made
at the outset of any discussion of this subject is that there
is no universal agreement as to what the term “rule of law”
actually means. Much of what follows is a matter of fairly
broad consensus, but by no means unanimous agreement.
The rule of law is a system of interrelated principles that
extend widely into social, economic, cultural and other
structures in present-day societies. For the purposes of
discussion, one must distinguish between those elements or
principles which are central to the rule of law and those
which are ancillary to it. At the same time, any such
exercise must to some degree be arbitrary: almost every
element of those structures supports the rule of law or is
supported by it, or in many cases, both.
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3
6. This is particularly true of human rights issues.
Commentaries are divided as to whether human rights,
individually or in general, ought to be considered elements
of the rule of law or something else that may be supported
by the rule of law but that are not essential to it. The
present paper resolves the issue by considering rights indi-
vidually. Some, such as rights relating to access to counsel,
the courts and effective remedies, are directly essential to
the rule of law. Others are not, although many do support
the rule of law indirectly. Freedom of expression supports
viable, legitimate and self-regulating structures to
formulate public policy and develop legislation, for
example. It must be emphasized, however, that this is more
a question of degree than of distinction, and the position
taken here should be regarded as the drawing of a line for
purposes of discussion rather than as a fundamental
statement about the nature of the rule of law.
7. A second fundamental point is that discussions often
focus on elements of the rule of law to the point where the
nature of the rule of law itself can be overlooked. The rule
of law is a system of principles that relate to the legal
governance of societies, but it is not itself primarily a legal
system. In systems where it is well-developed, the rule of
law is a much broader and more deeply rooted social and
cultural structure. It effectively anchors and stabilizes
legality, while maintaining a firm connection to social
development and change, ensuring that laws and legal
practices keep pace. This has profound implications for
those seeking to develop the rule of law where it is absent,
if it has been absent for some time or never existed to
begin with.
8. The development of legal infrastructure is essential
to the rule of law, but also essential, and far more difficult
to develop, are social and cultural traditions of legitimacy,
acceptance of legal authority and respect for law. Building
new courts of law or law schools and training those who
will work in them may take a few years, but the develop-
ment of truly solid traditions of legality is apt to be a
process spread over several generations. What might be
done over the shorter term is to develop social conditions
that will lead to the adoption of a rule of law tradition over
time. It is also possible to provide the infrastructure needed
to make the rule of law both viable and preferable to other
means of governance. One must, however, be realistic in
assessing goals and expectations.
IV. Some elements or requirements of
the rule of law
A. The law must be comprehensive
9. The essence of judicial decision-making is that it
involves the application of legal rules and not other
less-tangible considerations to whatever facts are at hand.
To replace purely ad hoc decision-making, the law must
provide rules on which decisions can be based. The details
of rule-making may vary, but the basic rules themselves
must exist when called upon. Legal systems commonly
incorporate legislative mechanisms that develop or adjust
laws to keep pace with social changes and judicial and
advisory mechanisms to interpret and apply general rules
to specific situations. Underlying these are default rules
that govern situations in which no other rule exists. In
criminal justice systems, the principle nulla poena sine
lege—that there be no criminal liability or punishment
unless the act committed constituted an offence in law
when it occurred—is an example of this.
B. The law must be clear, certain and
accessible
10. Criminal law must be sufficiently clear to guide both
executive and judicial decision-making. It must also be
understood by the general population, which is generally
presumed to know it and expected to comply with it. The
drafting itself may not be clear to the average person, but
it must be clear and certain enough to form the basis of
commentary by others, including professional lawyers and
judges. Criminal justice measures can lead to the most
extreme of consequences for those accused of crimes,
which requires a high degree of certainty.
11. Most people do not read statutes. They understand
the laws that are relevant to their activities through com-
mentaries and publications ranging from government and
professional gazettes to the documents of interest groups
and the public media, and the viability of these in pro-
viding diverse, accurate and accessible information is an
important support structure for the rule of law in civil
societies. Where more detailed or authoritative information
is needed, professional legal counsel may be sought, and
the availability and accessibility of counsel is also
important, not only in proceedings but in providing general
advice as well.
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12. Accessibility is also a requirement for legislative and
judicial proceedings. Openness and transparency in
legislative proceedings supports the popular legitimacy of
the legislation that results. The same is true for judicial
proceedings in which precedents are set or law is made.
Transparency is also important to the integrity and the
perceived integrity or legitimacy of judicial proceedings in
general. This requires the existence of independent and
competent commentators, who must be given access to the
courts and legislative proceedings, and to media that can
be used to disseminate accurate information about them to
the general population.
C. The law must be legitimate: consent and
compliance
13. In any society, the rule of law depends on the fact
that the majority of people confronted with legal rules,
whether in official functions or private life, will comply
with them, thereby keeping the cases of non-compliance
within manageable levels. This depends to a large degree
on what has been described as the “legitimacy” of the law,
which in turn depends on several key factors, including:
(a) Legislative legitimacy. There must be legiti-
macy on the part of the lawmakers or the law will not be
respected. In democratic systems, this takes the form of the
political accountability afforded by periodic elections, but
there may be other legitimizing factors as well. Individuals
may sometimes govern successfully because of their
personal popularity or religious authority, for example;
(b) Legitimacy of policy. Transparency and acces-
sibility of the policy development and legislative process
is also needed for legitimacy. The perception that those
affected by a particular rule had some influence on its
creation increases the legitimacy of the rule itself. Even
those who disagree with a law will usually comply if there
is the perception that it was arrived at after full and fair
consideration of other options. A broader range of input
through popular consultation, legislative study and open
debate also tends to mitigate or exclude unnecessarily
difficult or cumbersome rules. The open discussion of
issues and options also serves to educate the population,
leading to better understanding, and hence greater com-
pliance, with the new law;
(c) Legitimacy of application. Law operates not in
the abstract, but in its application to everyday situations
and ordinary people. Compliance depends to a large degree
not only on the legitimacy of the rule itself, but also on the
popular belief that those who apply or enforce it do so with
fairness, consistency and transparency. This applies to a
broad class of public servants who apply legal rules in a
wide range of circumstances, but it is particularly critical
in the case of elements of criminal justice systems such as
law enforcement, prosecutors and the criminal courts. In
this sense, criminal justice systems are not only supported
by the rule of law, but also support it in turn. Consider, for
example, cases in which the most powerful members of
society are suspected of crimes. The system relies on rule
of law elements such as equality and independence to
ensure that they cannot use their power to escape liability.
At the same time, the ability of the system to deal effec-
tively with such cases protects the rule of law from undue
influences, such as bribery and intimidation. More
generally such cases, if successfully concluded, set legal
and social precedents that can strengthen the rule of law;
(d) Legitimacy of support structures. As noted
above, the rule of law is rooted in other elements of the
social structure, from which it draws support and stability.
The legitimacy of legalism itself, therefore, depends to
some degree on the popular legitimacy of many of those
structures as well. For example, the legitimacy of the law
and judicial proceedings depends to a significant extent on
the degree to which they are reported accurately by the
media, which depends in turn on the perception that the
media are both competent and independent of the State and
the proceedings themselves. Support structures from within
criminal justice systems are also important. The openness,
transparency and effective governance of law enforcement,
prosecutorial, judicial and penal structures support not
only the credibility of those institutions, but the legitimacy
of the rule of law itself. In most societies criminal justice
matters have a very high public profile. The rule of law can
be greatly reinforced or badly damaged, depending on
whether those structures are seen as fair, independent and
effective.
D. The law must balance stability and
flexibility
14. Rule of law elements such as accessibility and
legitimacy also depend to some degree on a satisfactory
balance between stability and flexibility in both laws and
law-making. If Governments change too frequently, public
policy will be uncertain and laws will lack legitimacy.
Rules made by short-term Governments tend to be seen as
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5
driven by partisan politics rather than public policy, and
those who disagree may choose not to comply if it seems
likely that the Government and its policies may not last.
Frequent changes also erode the ability of commentators to
provide informed assessments of the law and for members
of the public to understand it. Too much stability in
Governments or laws, on the other hand, creates the
impression that neither legislators nor legislation are still
linked to the evolving needs of society. This can lead to
pressure for extreme forms of political change and a
widespread perception that the law is irrelevant. This can
in turn lead Governments to use repressive measures to
compel compliance and populations to seek out non-legal
structures for governance, dispute settlement and other
matters.
E. Equality before the law
15. Originally, equality before the law meant that
individuals and the State must be equal before the law.
This remains an important principle, but modern concepts
have expanded it to encompass the general equality of
everyone concerned with the law. What is important for the
rule of law is that everyone should be equal before the law,
regardless of power, wealth, individual or corporate status
or other characteristics not directly relevant to the issues at
hand. In individual-State matters, the State and its officials
should be bound by their own laws, subject to the same
scrutiny and sanctions for non-compliance, and stand on an
equal footing with individuals in legal disputes between the
two. The idea of general equality before the law has
assumed greater importance in recent decades, as powerful
non-State parties, ranging from multinational corporations
and interest groups to transnational organized-crime
groups, have emerged. Equality is essential to ensuring that
legal determinations are made on the basis of legal rules as
opposed to the status of the parties involved. This is
needed not only for basic fairness, but also to ensure the
predictability of outcomes.
16. It is important to note that equality as a rule of law
concept is much more narrowly drawn than its human
rights counterpart. In human rights terms, law is often seen
as the means of achieving substantive equality or providing
remedies for various forms of discrimination. In rule of law
terms, substantive equality can be limited by the law itself,
provided that the other basic requirements of legality are
met. Laws that discriminate on criteria such as race, gender
or religion may infringe basic rights guarantees, but they
would not necessarily be inconsistent with the rule of law,
provided that the discrimination was prescribed by law.
This can be contrasted with cases in which a law that is not
discriminatory is applied in a manner that does
discriminate, which would not be consistent with the rule
of law.
F. Institutional independence and the
separation of powers
17. The integrity of the rule of law and legal structures is
commonly protected by distributing powers among dis-
parate actors or agencies that can then act as controls on
one another. This includes judicial independence and
structures such as the legislative/executive/judicial separa-
tion of powers proposed by Montesquieu and found in
many modern constitutions. It also includes the separation
of more mundane public administration into numerous
agencies, preventing any single centre of power from
achieving dominance. The rule of law is itself a form of
power dispersion because it sets up legal principles as a
control on social, economic or other pressures in society
and vice versa.
18. The high degree of independence needed for judicial
functions makes them something of a special case and
warrants specific comment (see below), but it should be
borne in mind that judicial independence and other forms
of power dispersal are interdependent. Truly independent
judicial decisions and judge-made laws require inde-
pendent judges, but also independent input into the process
from prosecutors, other lawyers and law enforcement
agencies. The courts cannot deal effectively with cases if
corruption or other undue influences on law enforcement
or prosecutors prevent them from coming into court or
distort evidence or argument once they are there. The
independence of lawyers and the media is also important
for other elements of the rule of law, notably equality in
legal proceedings and access to the law through competent
and independent advice.
19. The independence of judges themselves involves not
only judicial employment, court and administrative prac-
tices and discipline, but also more far-reaching matters
such as judicial selection, training and, increasingly,
periodic retraining to keep judges abreast of relevant legal
and social developments. Reasons given for the higher
degree of independence accorded judges include the
following:
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(a) Independence helps to ensure fairness and
consistency in dispute settlement and criminal prosecutions
by eliminating irregular or undue influences on the
process;
(b) Independence distances the judges who inter-
pret laws from the legislative bodies that enact them and
the executive bodies that administer them;
(c) Independence is needed to ensure that the
courts can be effective in holding other branches of
government accountable for their actions and in correcting
their interpretations of the law;
(d) Independence from other branches of govern-
ment is needed for objectivity in applying constitutional
rules related to the separation of powers;
(e) Independence is essential for ensuring the
popular legitimacy of courts, both as decision makers in
settling disputes and, where judges make law, as law-
makers.
G. Legal rights as elements of the rule of law
20. Human rights in general can be distinguished from
the rule of law, but some legal rights are necessary
elements. Laws can govern behaviour and settle disputes
only if those who have legal concerns have meaningful
access to accurate information and competent advice about
the law. Individuals can use the rule of law as a control on
State acts only if those affected have meaningful access to
the courts and effective remedies against the State. This is
true of law in general, but it is particularly critical in the
case of criminal law and proceedings because of the
severity of the sanctions that can be imposed and the
degree to which they can interfere with otherwise
established basic human rights. Legal rights that are
important to ensuring the rule of law in criminal justice
systems include the following:
(a) The right not to be prosecuted for offences that
did not exist in law when committed or that are too vague
or uncertain to inform individuals as to what is a crime and
what is not;
(b) The right to be informed about the nature and
substance of any criminal charges and the status of
criminal proceedings;
(c) The right to competent and independent
counsel and, more generally, the right to mount a full and
fair defence to criminal charges;
(d) The right not to be subject to arbitrary arrest,
detention, search or seizure in the course of criminal
proceedings;
(e) The right of access to independent courts, in
interim proceedings, at trial and while incarcerated, in
order to question actions taken by the State;
(f) The right to effective remedies, including
meaningful appeals, against the State, in interim and final
proceedings and while incarcerated;
(g) The right to have proceedings dealt with
expeditiously, in particular if liberty or other significant
interests are prejudiced or curtailed while proceedings are
pending or ongoing.
21. All of the foregoing are rights exercised primarily by
those suspected or charged in criminal cases and their
major significance for the rule of law is that, if there is
access to independent courts, they function as a form of
independent control on the quality of the proceedings. The
rights of victims and witnesses, a growing concern in our
societies, sometimes serve a similar function. These
include the following:
(a) The right of victims or other private parties to
lay and prosecute criminal charges in cases where the State
cannot or will not do so;
(b) The right of victims to monitor and to some
degree to participate in proceedings such as criminal trials,
plea negotiations and decisions concerning the release of
suspects or convicted offenders on bail or parole;
(c) The right to security and protection from inti-
midation or retribution for having initiated or assisted in
criminal proceedings.
V. The rule of law and development
22. Strengthening the rule of law has emerged as a focus
of development efforts in recent years. Projects have
tended to focus on the relatively concrete goals of streng-
thening legal infrastructure rather than underlying social or
cultural reforms. When projects have addressed criminal
justice systems, they have dealt with areas such as the
training of police officials, lawyers, prosecutors and
judges; the equipping of those officials with resources and
materials ranging from uniforms and computers to court-
houses and law libraries; the enhancement of capacity to
develop public policy and to formulate, draft and enact
legislation; and the enhancement of State and
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non-governmental capacity to disseminate legislation and
informed comment on legislation. A number of lessons
have already been learned from such efforts.
23. One lesson is that coherence or coordination is
essential in developing individual reforms. Piecemeal
reforms that alter only one element of a justice system may
distort others, and in many cases no benefits can be
achieved by reforms in one area without corresponding
improvements in others. Ill-conceived reform packages
may actually do more harm than good by damaging
confidence in the system and future reform attempts.
Expanding law-enforcement and prosecutorial capacity, for
example, will simply generate backlogs in the courts and
hardship conditions in prisons without corresponding
changes in those systems.
24. When considered as comprehensive packages, the
magnitude of development efforts also suggests that rule of
law reforms are important as a goal in themselves and not
just because they are needed to support other objectives.
Rule of law projects during the 1980s and early 1990s
tended to develop rule of law measures in support of either
economic “sustainable development” programmes
(including World Bank, Organization for Economic
Cooperation and Development and bilateral development
projects) or as a mechanism for the protection of basic
human rights (such as United Nations projects). This raises
the possibility that those involved in such projects will
overlook or underemphasize aspects of the rule of law that
are not essential to their own objectives.
25. Rule of law development for its own sake or reform
of other areas such as criminal law may in some cases be
seen as secondary to economic development, or even as an
impediment to it. Human rights projects have a greater
interest in criminal justice reform because of the need to
protect rights in the course of criminal proceedings, but
that relationship may also sometimes be an uneasy one.
There is generally some tension between human rights and
the effectiveness of criminal justice systems because the
rights of criminal suspects are often protected by imposing
substantive or procedural requirements on police and
prosecutors, supported by some form of remedy for the
suspect whose rights are infringed upon. In this context
references to “strengthening of the rule of law” by the
United Nations would probably not be seen by some in the
criminal justice professions as the strengthening of crimi-
nal justice systems themselves.
26. In a larger sense, however, strengthening the rule of
law does indeed strengthen criminal justice systems in
several ways. Legal rights that can be asserted by suspects
and offenders against the system protect other basic rights,
sometimes at the cost of crime control, but such pro-
ceedings also support the system by identifying problems
and generating solutions. Ways are found to conduct the
business of crime control effectively within a framework of
basic rule of law and human rights. The rule of law also
increases the certainty and legitimacy of the law, which
brings benefits in the form of greater compliance and more
cooperation by witnesses and others with the police and
courts. Perhaps the greatest benefit, however, is that rule
of law reforms, by treating like cases alike, result in
standardization in areas such as law-making, adminis-
trative and judicial interpretation of the law, law
enforcement and other areas, which can greatly increase
both effectiveness and efficiency.
27. Development efforts of recent years have also
established that changes in legal systems alone will not
bring about the rule of law in societies where the trad-
itional or cultural values necessary to support it are not
present. Legitimacy, legality and popular support for the
rule of law must be developed to the point where those who
are adversely affected by legal rules are unable or
unwilling to resort to non-legal means. This requires open-
ness and transparency in the formulation of public policy,
the legislative process, the administration of the law and
judicial proceedings. If these are present, popular confi-
dence in the law will be established over time. Ultimately,
establishing a new rule of law culture involves convincing
civil society, including its most powerful members, that
their best interest lies with the advantages of public
security, social stability, economic prosperity and general
quality of life generated by rule of law reforms.
28. The lessons learned thus far suggest several con-
siderations for future efforts. Firstly, those involved in
human rights or economic projects should also be con-
cerned about the criminal justice effects of proposed
reforms. Development projects attract corrupt influences,
and reforms that increase economic activity or attract
investment may also increase criminal opportunities, in
some cases to an even greater extent than legitimate ones.
Crime control elements can often be “built in” to such
programmes, but only if the necessary rule of law infra-
structure is there to support them. Changing crime patterns
brought about by such reforms may also place added
pressure on underdeveloped justice systems to protect the
new interests while maintaining adequate standards in
other areas. Changes that strengthen human rights
protections should do so where possible without reducing
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8
the effectiveness of crime control and, where such effec-
tiveness is reduced or seen to be reduced, it is important
that those involved understand the benefits that accrue in
other areas. The ultimate objective should not be to
achieve specific goals in terms of rights protection or crime
control, but a viable balance between the two, having
regard for the needs of the society involved.
29. Secondly, it is incumbent on all of those who press
for the strengthening of the rule of law in any context to
step back and consider the rule of law as an important
social and legal structure in its own right. This is needed to
ensure that elements of the rule of law are developed in
balance with one another in the context of the society for
which they are proposed and that nothing is left out.
30. Finally, as noted in the discussion about the nature of
the rule of law above, it is important to recognize that the
rule of law is much more than a legal construct, reaching
into social and cultural foundations of a society for the
strength needed to support the framework of the law itself.
The very utility of the rule of law as a mechanism for
structuring laws and social conduct and for stabilizing
legality against counter-forces depends on the depth of its
foundation and the care with which it is developed. In
taking a comprehensive approach to rule of law projects,
it is important to take into account the magnitude of the
task and the fact that the reforms underlying the rule of law
take time to take root in developing societies, whose
members must internalize them and acquire a sense of
ownership. It is necessary for both donor and developing
countries to be realistic in their expectations regarding
such efforts. As one recent commentary puts it “Rewriting
constitutions, laws and regulations is the easy part.
Far-reaching institutional reform, also necessary, is
arduous and slow.”
2
VI. The rule of law, terrorism,
organized crime and corruption
31. Most conventional criminal offences do not raise
significant concerns for the rule of law, but those involving
organized crime, terrorism and corruption are exceptions
for several reasons. Terrorism is of concern because acts
are generally directed against the State or civil society and
its institutions, which makes it a threat to the rule of law
and many of the other social structures that support it. Acts
of terrorism are not confined to “political” groups: they are
also sometimes used as a tactic in support of criminal
goals. There are many examples of cases in which
conventional organized criminal groups have committed
violent acts for political ends or to interfere with the course
of justice. There are also many cases in which groups
generally regarded as terrorist in nature have committed
conventional crimes in order to finance their activities or
further their goals.
32. Upholding the rule of law and strengthening the
integrity of criminal justice systems are major elements of
State responses to terrorism and high-profile symbols of
State authority. This makes individuals such as judges or
prosecutors potential targets for terrorist groups seeking to
disrupt operations or discredit the moral authority of the
law. More generally, random violence against other targets
is used to demonstrate that the State cannot protect its
citizens everywhere and all of the time or to provoke a
harsh reaction from the State. The inability of the
Government to cope with terrorism through law enforce-
ment procedures within the rule of law may strengthen the
voice of those who advocate the use of martial law or other
extralegal methods to do so. If the Government cannot
effectively stop a terrorist campaign, there is also the
danger that groups of citizens will take the law into their
own hands.
33. Organized-crime and high-level corruption offences
tend to be crimes of the powerful. Those involved often
have both the motivation and the means to manipulate or
distort the application of law, legal proceedings and even
the making of laws to gain unfair advantage or to avoid
criminal liability for their offences. Where these activities
are pervasive or present at the highest levels in a society,
they can neutralize or disrupt the rule of law to the point
where it could be said that legalism exists in name only, if
at all. Those with sufficient power or resources find it
unnecessary to actually engage in corrupt interventions
because those in the justice system, having come to
understand that there is no point in attempting to apply the
law in such cases, do not pursue investigations or lay or
prosecute charges. Victims, who normally press the State
to take action, may be intimidated to the point where they
instead refuse to cooperate.
34. This erodes the rule of law by eroding equality before
the law and the ability of the system to treat the powerful
and the powerless on the same legal basis. In high-profile
cases, the erosion goes beyond the individual case at hand
and comes to represent a threat to basic legitimacy. Faced
with the avoidance of law by the powerful, the rest of the
population either does not comply with the law or complies
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9
only when credibly threatened with sanctions. Either way,
broad-based compliance based on the legitimacy of social
consensus and acceptance of legal rules is lost.
35. Corruption at lower levels of public administration
poses a threat of a different sort. Low-level corruption, left
unchecked, can spread throughout government. Here the
rule of law is eroded because individual-State interactions
are no longer conducted in accordance with clear and
certain legal rules. Instead, interactions and outcomes are
determined by unofficial and often ad hoc rules for the
exchange of bribes or other considerations. This is incon-
sistent with many elements of the rule of law: compre-
hensiveness, clarity and certainty are lost because the rules
being applied are no longer legal ones, but ones dete-
rmined on a case-by-case basis. There is no equality
because outcomes are governed by the ability to pay bribes
rather than the law as it applies to each case. Procedural
legitimacy is lost because the rules applied are no longer
those created by the legislative process, and substantive
legitimacy is lost because there is no longer a connection
between the formulation of public policy and the rules that
actually apply. Judicial independence is lost either because
judges are susceptible to corruption by the parties in
litigation or because the information they receive from
other officials in the justice system, such as police or court
officials, is corrupted, or both. Finally, those legal rights
that are necessary elements of the rule of law (and other
human rights as well) tend to be eroded because corrupt
public officials, in extending the rights to those who can
pay, usually withhold them from those who cannot.
36. Organized crime represents additional threats to the
rule of law. It often uses corruption to distort the legal
system to its own advantage, but has other means at its dis-
posal as well. It resorts to intimidation or violence either to
induce officials to do its bidding or to remove them as
obstacles. Crime that is “organized” tends to be both crea-
tive and coordinated in such approaches. Those who refuse
bribes may be targeted with violence, either to influence
their conduct or to set examples that will make others less
likely to resist. Multiple elements of the justice system may
be targeted. If law enforcement investigations cannot be
subverted, for example, prosecutors, judges, jurors,
witnesses and anyone else who can affect the outcome of
criminal proceedings may be targeted. Increasingly,
organized criminals have also taken advantage of the same
conditions that support global commerce to move
endangered elements of their operations from jurisdictions
where the rule of law cannot be avoided to places where
conditions are less unfavourable.
37. Organized efforts to subvert or corrupt justice
systems, if successful, represent a direct threat to rule of
law elements such as equality, judicial independence and
basic legality. Indirectly the same threats to basic legiti-
macy also arise when individual organized crime cases
erode the credibility of criminal justice systems. In extreme
cases organized crime can also threaten legitimacy by
infiltrating the political or legislative process itself.
Members of organized crime may run for elective office,
for example, in order to take advantage of parliamentary or
legislative immunity or to place themselves in a position to
block criminal investigations or legislation hostile to
organized crime. Perhaps more common are cases in which
undue influences ranging from bribery to murder are used
against otherwise legitimate legislators or officials to
distort the formulation of public policy or the making of
laws. All of these situations erode the legitimacy of laws
and legal systems because policy is made in response to the
interests of organized crime rather than those of the public.
VII. The rule of law and transnational
crime
38. Transnational crime represents a challenge to the rule
of law because the volume and diversity of such crime is
increasing and because the nature of the international
community poses obstacles to the rule of law that do not
exist at the domestic level. Transnational crime operations
are supported by the same new technologies and other
developments that have supported the globalization of
legitimate activities. Operations such as drug-trafficking,
money-laundering and illegal migration are now supported
by telephones, facsimile (fax) machines, the Internet and
high-speed, affordable travel, in much the same ways as
their legitimate counterparts.
39. The usefulness of such technologies and present-day
dependence on them for legitimate purposes pose an addi-
tional crime control problem. While equipment or
substances—such as certain drugs or firearms—used
primarily by criminals can be targeted for prohibition from
or restrictions on general use, any such measures applied
against more widespread technologies, such as modern
telephones and fax machines, high-speed broad-band
telecommunications and the Internet, or policies such as
free trade or open borders cannot be used as crime control
measures because the cost to legitimate interests would be
too high.
A/CONF.187/3
10
40. Another problematic crime trend brought about by
many of these technologies is the fact that transnational
activities are no longer limited to “organized crime” in the
traditional sense. New technologies are generally limited
to large and affluent organizations at first, but usage
becomes more widespread as the technologies become
established and the costs decrease. This will make it easier
for individuals to commit transnational crimes. This can
already be seen in the use of telephones, fax machines and
the Internet to commit fraud and other economic crimes.
Computers and the Internet have also made it possible to
create, conceal and transmit information that is the subject
of domestic criminal offences because of its offensive
content. Some of these crimes involve traditional
“organized crime” but many do not, and this trend is likely
to continue in the future.
41. These trends in transnational crime are problematic
because new opportunities for such crime have been
created and the costs and risks to offenders have generally
decreased, although the costs and obstacles facing trans-
national investigations and prosecutions have not. The use
of new technologies by large organized crime groups can
be dealt with, albeit at some cost, by committing additional
investigative resources to the problem and forging better
systems for international cooperation in major cases. The
commission of larger numbers of less serious transnational
offences by individuals and smaller groups could pose a
more serious problem because countries and agencies may
be unwilling or unable to commit the resources required for
such things as mutual legal assistance and extradition in
those cases.
42. This raises a number of implications for the rule of
law in criminal justice systems. In the strict sense outlined
above, the rule of law does not exist as a crime control
mechanism at the international level.
3
There is no inter-
national legislation that creates conventional offences and
criminal procedures applicable to individuals in the same
sense as domestic criminal laws do. International agree-
ments perform a legislative function to some degree, but
this is generally directed only at individual criminality
after interpretation and implementation by domestic legal
authorities. Governments retain the ultimate right to repu-
diate agreements and have the choice, subject to negotia-
tion of reservations, to opt out of provisions they find
particularly problematic. In individual cases, such things
as extradition and mutual legal assistance are also
generally subject to State discretion, which is ultimately
exercised on political, not legal grounds.
43. Few if any countries could accept the erosion of
national sovereignty inherent in applying the conventional
rule of law elements on an international basis, but there
have been some attempts to move in that direction. Recent
agreements for the transnational control of drug-trafficking
and the ongoing negotiations on a convention against
transnational organized crime are attempts to ensure that
pre-existing, clear, comprehensive legal rules will be
available to deal with transnational offenders. The goal is
to ensure that, in dealing with a particular transnational
crime problem, all jurisdictions have effective offences,
that offenders cannot avoid liability and that rules are
sufficiently consistent in all places to deter offenders from
choosing jurisdictions on the basis of the lowest risks or
highest potential rewards. International standards and
norms for law enforcement, prosecutors and judges also
represent an attempt to ensure that all States adopt
relatively consistent practices with respect to the
independence of judges and other officials, equality before
the law and the protection of legal and other rights in the
criminal process.
44. These efforts are a significant step forward, but they
are likely to face several major challenges in the future.
Firstly, while transnational crime control mechanisms such
as legal assistance and extradition are being modernized,
they are based on the assumption that caseloads will be
small compared with purely domestic prosecutions. These
systems may be difficult to adjust if in future a larger
proportion of crime involves transnational elements. There
are compelling reasons why formal cooperation must go
through central authorities, for example, but this adds to
delays and limits the volume of cases that can be dealt with
without increasing resources. As new technologies make
the commission of transnational crimes by both individuals
and groups easier, an increase in volume is likely to occur.
45. Secondly, technological development tends to create
new criminal opportunities, and hence new forms of crime,
quickly and unpredictably. The fast evolution of crime has
already generated pressure on domestic legislators to
ensure that criminal laws keep pace, and the same pres-
sures will arise in the international community. Interna-
tionally, however, the logistical and political difficulties
are greater. Where domestic legislatures usually have clear
and reasonably efficient powers, making international law
requires achieving near consensus on new measures among
a large number of disparate countries. The amendment of
existing measures is also more difficult and time-
consuming at the international level. These factors will
make it much more difficult for the international com-
A/CONF.187/3
11
1
F. Allen, “A crisis in the criminal law? Reflections on the rule
of law”, Mercer Law Review, No. 42 (1991), p. 821.
2
T. Carothers, “The rule of law revival”, Foreign Affairs,
vol. 77, No. 2 (1998), pp. 95-96.
3
This is not completely accurate, given the recent efforts to
establish ad hoc and permanent international criminal courts,
but these efforts have been limited to the control of a small
number of international crimes (war crimes and crimes against
humanity) that are not relevant to the present discussion.
munity to react quickly and collectively to new crime
trends.
46. Thirdly, technological changes will generally make
it easier for offenders to choose jurisdictions with rela-
tively ineffective crime controls to conduct operations or
shelter evidence or proceeds of crime from law enforce-
ment agencies. This will place additional pressure on the
international community to come much closer to unani-
mous agreement on crime control measures, because the
lack of participation on the part of any one State may prove
fatal to otherwise viable strategies. This will add further
complications and delays to the process. It will also create
exceptional difficulties for developing countries.
Generally, those States are less likely to have the resources
and technical expertise to implement transnational
controls, in particular in the critical area of high-tech
crime. Since the victims of such crime are most likely to be
from developed countries, it may also be difficult for
developing countries to justify transnational crime control
measures in preference to pressing domestic issues.
Notes
