A/CONF. 187/3 L. Introduction analyse in theory and even more difficult to develop in practice 1. The present paper is intended to inform and stimulate 3. The rule of law in criminal justice systems was discussion about the rule of law, with a focus on issues that largely overlooked in discussions about sustainable are important for the development and maintenance of economic development and was often addressed only effective criminal justice systems. It will be seen that there tangentially in discussions about the protection of human are differing concepts of the rule of law and that taken rights. The idea that rule of law reforms would generally broadly it covers a very wide range of legal and social make criminal justice systems actually work better, by issues. To permit discussion on a uniform basis, the paper making them both more effective as crime-control systems therefore begins with a discussion of the nature of the rule and more just and protective of human rights, has not f law and in particular those elements of greatest impor- figured prominently in the debate thus far. This tance for criminal justice. It then considers the significance prising, since the rule of law is arguably more important in of the rule of law as a goal of sustainable development and criminal matters than in many other areas of the law as a means of supporting the achievement of other "The legality ideal confronts its sternest tests in the development goals. Offences involving terrorism, corruption and organized crime raise unique problems for area of criminal justice. This is true for at least two the rule of law. and these are considered. transnational reasons: First, the implications of arbitrary exertion crime, which may or may not be committed by organized of state power are particularly somber here because criminal groups, also constitutes a new challenge to of the severity of the sanctions administrated by the conventional models of the rule of law because the rule of criminal law and the status-degrading potency of law is based on a traditional framework in which sovereign riminal proceedings. Second, the threat ofcrime and powers, including those to make, enforce and administer the outrage it produces tempt officials to perpetrate the law. are exercised at the national level. the advent of and the public to approve carelessness toward and new transportation and communication technologies sometimes disregard of the legality of their efforts at creates the potential for increases in transnational crime The reaction of the international community, and the 4. To this might be added another more fundamental challenges that it may face in the future are discussed in concern. The very nature of the criminal justice systems erms of the rule of law and sanctions makes them the ultimate instrument for turning the rule of law itself into a mechanism of repres al I. Background 2. Discussion of the rule of occupied criminologists Ill. Nature of the rule of law during much of the latter half of the twentieth century. It was seen as a remedy for human rights abuses and, for a 5. Perhaps the most important point that must be made at the outset of any discussion of this subject is that there and socialism was a battleground of the cold war. Towards is no universal agreement as to what the term"rule of law" the close of the century, the rule of law became a focus for actually means. Much of what follows is a matter of fairly development projects, which saw it as a means of suppor- broad consensus, but by no means unanimous agreement ting the implementation of economic and human rights The rule of law is a system of interrelated principles that reforms and, on occasion, as an end in itself. Practical extend widely into social, economic, cultural and other experience with such development eventually led to a more realistic assessment of the difficulties of developing the structures in present-day societies. For the purposes of rule of law and to the real ization that it is the rule oflaw discussion one must distinguish between those elements or principles which are cen tral to the rule of law and those practice, and not in theory, that matters. It also led to which are ancillary to it. At the same time, any such serious questions about the nature of the rule of law not xercise must to some degree be arbitrary: almost every only as a legal construct, but as a much broader framework element of those structures supports the rule of law or is of social values and cultural beliefs that are difficult to supported by it, or in many cases, bothA/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