The failure of rule of law

As the anthropologist and lawyer Sally Falk-Moore observed “law is only ever a piecemeal intervention by the state in the life of society.”[i] Laws are, ultimately, social norms that are taught, enforced and arbitrated on by the state. The value of these norms is such that they are deemed to be a vital part of a society’s identity and the state is entrusted with their protection. However, this ideal can be difficult to achieve. Debate as to which norms the state should be custodian of is constant. Where there is a disconnect between a law and the daily lives, aspirations and struggles of a society, it becomes unlikely that that law will be complied with. Generally, a state will not be able to give a pronouncement the force of law if it does not reflect the values held by a majority of a society. Compliance with the law can be even harder to obtain in highly plural societies. Even in plural societies ruled peacefully by an effective central government (such as India), communities’ conceptions of children’s rights may be radically different from those set down in law. The Indian child marriage restraint act has been in force since 1929, but the practice remains endemic in southern India to this day[ii]. Governments can attempt to enforce compliance with a law, through education, incentives or deterrence. What if the state that is intended to mount the “piecemeal intervention” of banning the use of child soldiers is weak, corrupt or non-existent? What if a state cannot carry out structured interventions of the type described above? Norms that state that the conscription of children is acceptable- due to tradition or need- will be dominant. Situations of this type will be the rule rather than the exception in underdeveloped states and states where conflict is so rife that children have become participants in warfare. The ICC has jurisdiction to prosecute individuals with command over military units who use children as combatants[iii], but how should the concept of a “commander” be defined in these circumstances? In order for the juristic principles underlying the authority of the ICC to function properly, it is necessary for there to be a degree of certainty and accessibility underlying laws promulgated by a state. While ignorance of the law is not a defence before the ICC, it impossible to call a system of law fair or just that is not overseen by a stable or accepted government. This is not possible if a state is so corrupt that it does not command the trust of its people; if a state is so poor that it cannot afford to operate an open, reliable and transparent court and advocacy system; if territory with a state’s borders is occupied by an armed aggressor. Western notions of rule-of-law are almost impossible to enforce under such conditions. All of these are scenarios encountered frequently in Africa, and central and southern Asia. Some regions within developing nations are so isolated from the influence of the state, or so heavily contested in internecine conflicts, that communities living within them cannot be expected to know that the state nominally responsible for them has signed the Convention of the Rights of The Child or the Rome Statute. Nor can the state attempt to inform them of this fact. Laws still exist and are enforced within such communities, but these are not state-made forms of law. For an individual living within a community of the type described above- an individual living in the DRC, in pre-secession South Sudan[iv] or an ethnic minority enclave on the border of Myanmar[v]- the question is a simple one. Does the most immediate source of authority and protection within his world- his community- condone the role that children play in armed conflict? He should not be made liable for abiding by laws and norms that have sprung up to fill a void created by a weak or corrupt central state. There is little hope that he will ever be able to access the counter-point that state sponsored education and engagement could provide. Child soldiers and their commanders are simply obeying the strongest, the most effective and the most stable source of law in their immediate environment. [i] “Comparative Law in a Global Context: The Legal Systems of Asia and Africa”, Werner Menski, Cambridge University Press, 2006 [ii] “State of the World’s Children 2009”, UNICEF, United Nations, 2008 [iii] “Elements of Crimes”, International Criminal Court, http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Elements+of+Crimes.htm [iv] “Child Soldiers: Global Report 2008”, Coalition to Stop the Use of Child Soldiers, 2007, p315, http://www.childsoldiersglobalreport.org/files/country_pdfs/FINAL_2008_Global_Report.pdf [v] “Child Soldiers: Global Report 2008”, Coalition to Stop the Use of Child Soldiers, 2007, p240, http://www.childsoldiersglobalreport.org/files/country_pdfs/FINAL_2008_Global_Report.pdf