This volume is the product of a working group on the international rule of law and international law in domestic courts, which commissioned a number of chapters on post-conflict situations.

The editors wish to thank the authors who responded to the invitation to participate in this project, some of whom are promising new voices in their field and others who are established experts, but all of whom have acquired a deep and personal first-hand knowledge of the legal cultures they write about. The Rule of Law Working Group also deserves acknowledgment for the initial conceptual discussions that led to the present collection. Aristotle Constantenides and Cyprus Law School deserve thanks for accommodating the first meeting in Nikosia; Rosemary Byrne, likewise, hosted a meeting at Trinity College in Dublin. Special thanks go to Martine van Trigt for organization and support not only of a meeting in Amsterdam but throughout the life of the project. Sincere thanks also to Belinda Macmahon and Scarlet Wagner for their editorial work on the manuscript.

Having presented the preceding thirteen case studies of how domestic courts apply, or do not apply, international law in various post-conflict and transitional settings (specifically, in Afghanistan, Bosnia and Herzegovina, East Timor, Iraq, Nepal, the Russian Federation, Rwanda, Serbia, and South Africa, as well as two cross-cutting studies), the time has come to take stock and draw some conclusions, while duly acknowledging the heterogeneity of the legal systems and post-conflict situations studied. We structure these Concluding Observations under the headings that we identified in the Introduction, and use these to integrate the lessons learned from the case studies.

In section 1, we provide an overview of the types of ‘constitutional moments’ that allowed for an increased role of national courts in the application of international law in the various situations studied. In section 2, we discuss the form and substance of domestic courts’ empowerment to apply international law in the different settings. In section 3, we review the role of the various actors involved in receiving or importing international law. Any concerns of the reader that an overly optimistic picture is presented by this overview of empowerment techniques should be immediately assuaged in section 4, which addresses the various limitations of applying international law in domestic courts which may have grown more accustomed to a violent and authoritarian political order than to a robust rule of law. Finally, section 5 discusses the effects and legacy of international law implementation by domestic courts in post-conflict or transitional situations. It questions whether the application of international law really makes a difference for post-conflict societies, and whether international intervention produces any lasting effects in terms of rule of law entrenchment or broader societal stabilization.

It is to be stressed up front that the conclusions in section 5 concerning recent changes in the countries studied are by necessity tentative and can only be assessed conclusively over a longer time-horizon. Also, we do not suggest that the gap between official support for international law and the actual application of international law by domestic courts is a phenomenon peculiar to post-conflict societies.

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. The legal system may be in need of rebuilding or reinvention to bring a climate of lawlessness to an end and create the conditions for a more stable future. The culture of impunity, lack of accountability, lack of rights protection, and, more generally, lack of respect for the rule of law that may have been pervasive in societies before undergoing the transition from autocracy to democracy often persist during the transition period itself. To the extent there is law, local ‘strongmen’ may be above it, or the law is co-opted by power to serve its ends. During the transition from violence or oppression, the pre-existing legal system, in whole or in part, may be temporarily suspended or permanently dismantled, and with it any semblance of the rule of law.

The rule of law challenges that characterize this period may include generalized insensitivity toward the plight of victims of the conflict or the deposed authoritarian regime; major criminals may get away with reduced sentences or outright impunity, ringleaders of criminal enterprises may escape their due because domestic legislation is not adequately equipped to address such modes of responsibility as command responsibility or joint criminal enterprise; the economic and social rights of marginalized groups may be insufficiently protected; judicial review of executive decisions may be non-existent; and the political branches may routinely interfere with the affairs of the judiciary.

During transition from one system to another, different layers of law may moreover be operational at the same time, creating confusion as to which legal standard should apply. Such heterogeneity of law, or legal pluralism, hardly furthers the goal of legal certainty so essential for dealing with past abuses onthe basis of the rule of law as opposed to arbitrariness. If there is no continuity of the domestic legal system, the break with the troublesome past may entail impermissible retroactivity of new law. The new regime may also need to grapple with abuses that were committed under color of law in the old regime, by persons obediently doing their duty.