“You can bring to other countries what you consider of importance and ascertain whether it is of benefit to the receiving country. However, you ought to return with something, too. For example, it can be of quite some benefit if a judge involved in Dutch social security law, when dealing with a case of a Moroccan who has returned to his country of birth, has gained some insight in the way of life there. That is the thread of what CILC stands for to me.” With a new year waiting around the corner, in this CILC Story the Dutch National Ombudsman and chairman of the CILC Board of Trustees, Reinier van Zutphen will share his vision on the future of legal capacity building and how CILC can continue to play a relevant role in this field. He derives this inspiration from his long-term experience as judge, court administrator and legal capacity building expert in various countries.
Interview by Marjolein C. Groot, 14 August 2015
Knowing the strong points of the Netherlands
“CILC has both the experience and the expertise to bring different people together and make them cooperate effectively. This is where I foresee opportunities.” Dutch National Ombudsman, chairman of the CILC Board of Trustees, former judge and court administrator Reinier van Zutphen anticipates plenty of opportunities for legal capacity building in the coming years. “Not only far away from the Netherlands, but also closer to the CILC home base like, for example, in Southern European countries such as Greece.”
Van Zutphen: “As CILC, we could be of help at the European Union level.” He stresses that the organisation should remain fully aware of what the particular strong points of the Netherlands are in the field of legal capacity building. “We should not only be very knowledgeable about the contexts in which these strong points can be best deployed, but also be aware of which Dutch organisations CILC can derive this expertise from and make use of it in its projects. That is crucial.”
Mainstreaming EU standards
Van Zutphen underscores the importance of having the various EU member states working together to harmonise standards. “Today, standards in fields such as the penal system, family law and migration and asylum laws are still different around the EU.” He aspires for CILC to become instrumental in furthering this harmonisation by facilitating the exchange of norms and values among EU member states. “What are the important issues, what are the minimum standards a state should fulfil in order to guarantee the protection and dignity of its citizens?”
Van Zutphen refers to a similar type of knowledge exchange CILC is currently facilitating in North Africa, more precisely in the Arab Spring countries such as Tunisia. “These are long-term programmes in which judges and civil servants travel to the Netherlands to participate in training courses and their Dutch counterparts travel to North Africa to deliver training.” He hopes that funding will become available to carry out a similar programme within the EU in order to exchange knowledge, both at the judiciary level and to implement services.
Following the EU Justice Scoreboard and the World Justice Project’s Rule of Law Index – monitoring progress made in rule of law in the EU and globally by providing data on the quality, independence and efficiency of justice systems – it became clear that there is still plenty of room for improvement in many countries. Van Zutphen: “Rule of law means that governments are themselves subject to the law. If you do not focus on that, the situation can quickly deteriorate, even in EU member states. The question is: are we able to keep up our high standards regarding legal protection and the judiciary?”
It comes down to human dignity
Despite the fair amount of attention being paid to rule of law within the EU, Van Zutphen does not fully agree with the current angle from which the subject is generally approached: the emphasis tends to be on the budgetary savings and gains obtained when the judiciary system is well organised. “When talking about rule of law, the focus should be placed on human dignity. In the end, it all comes down to an individual citizen who can live a dignified life.” He acknowledges that this can mean something different in the Dutch context as opposed to one in which food, water and security are lacking. “The discussion should also be about that.”
When talking about rule of law, the focus should be placed on human dignity. In the end, it all comes down to an individual citizen who can live a dignified life.
Van Zutphen’s interest in international legal cooperation comes from his training within the judiciary: he spent his final year and a half of legal training at the Court of Justice of the European Union (CJEU) in Luxemburg, checking that EU law was interpreted and applied evenly in every EU country and that countries and EU institutions abided by EU law. Van Zutphen says he still benefits from this unique and insightful experience. “Upon my return to the Netherlands around 1992, the EU was preparing itself for a large enlargement round: ten countries would join as new EU member states. It launched all kinds of projects to educate those ten countries on EU matters.”
CILC was actively participating in those EU legal capacity building programmes and, during the following two years, Van Zutphen spent quite some time in Estonia as an expert. He trained judges and prosecutors in the field of EU law, preparing them for the accession of their country to the EU. “That was a wonderful project and I got to know the country quite well. Every six weeks I would spend three or four days in Estonia” he recalls. After this many international assignments followed, including projects for the Council of Europe. Van Zupthen also spent a few years working as a judge in Curacao.
In 2007, when Van Zutphen had returned to the Netherlands, he became the chairman of the Nederlandse Vereniging voor Rechtspraak (NVvR), the Dutch Association for the Judiciary. Van Zutphen: “This role meant I was also a member of the Council for International Legal Cooperation (Raad voor Internationale Juridische Samenwerking, RIJS). This body used to advise CILC on its legal cooperation projects.” For the last two years, he has been Chairman of the CILC Board of Trustees. During this time, CILC has fully renewed itself to remain a strong player in the field of international legal cooperation.
Re-establish strong links with Dutch legal structures
Van Zutphen would like to see CILC re-establish its historical links with all the legal structures in the Netherlands, such as courts, universities and ministry departments. Van Zutphen: “Initially, these different players were all represented in the RIJS, which had been established to advise CILC and which ensured that the organisation had varied contacts with relevant institutions. Eventually, RIJS turned out to be too large and no longer effective. The more CILC became a professional organisation, operating independently, the more RIJS lost its importance.” A change in the CILC governance structure gave rise to a new, small, Board of Trustees.
Since his appointment as chairman of the CILC Board of Trustees, Van Zutphen feels that CILC went through an important development: the Board stepped somewhat into the background and the director was allocated larger powers. “This I call professionalisation.” He underscores that in order to be successful, one should know his assets very well and focus on these. “For CILC, these are its network and the people CILC manages to engage as contributors to its projects.”
Strong assets
According to Van Zutphen, it is important to discuss with the judiciary and other Dutch legal structures what their strong points in the field of legal cooperation are. “What is it that they see as their assets, what are they known for internationally? What do they feel is important and the core of our rule of law? About what do they often receive international requests for knowledge sharing? CILC could further develop these strengths together with them.” He adds: “I want to bring all these partners together and use and build on their knowledge.” Some months ago, CILC performed a small exercise. In order to explore on what the Netherlands should focus in its legal cooperation efforts, CILC brought together about 30 people from universities, NGOs, government departments and other organisations operating in the field of rule of law. “This resulted in an initiative that hopefully will be implemented in the Ukraine in the near future.”
Van Zutphen: “That is what I like. Find out what it is the Netherlands could contribute with, where and how. If our Ministry of Foreign Affairs informs us that they would like to focus on the Ukraine, we can figure out how we, as the Netherlands, can contribute, where our strong points in this lie exactly.” He emphasises that CILC should engage with the Dutch Ministry of Foreign Affairs to be fully aware of its priorities. “It is of tremendous help if you engage in activities supported by the Ministry. You should know each other and know what the current affairs situation is.”
Authoritative position
Van Zutphen would like CILC to have an authoritative position in the field of legal cooperation and believes CILC should be the default organisation for anyone engaging in this type of work. “One can achieve this by showing what one excels in and, in CILC’s case, it is the fields of education and training of judges and prosecutors. This can be expanded to education and training of administrative court officials. Moreover, our experts possess knowledge in the field of penal and police systems.” He emphasises that CILC is not a scientific institution and its experts are not academics, but practitioners. “That is our strength. Our experts are not consultants, which shows that we do not work purely for our own benefit, or for money.”
Experts with a mission
For Van Zutphen, the power of CILC should be that experts not only talk to but also work in partnership with the receiving country. That pleads for longer cooperation, in which the experts receive the opportunity to visit the country multiple times. “For example, in Morocco, for a project between the NVvR – the Dutch Association for the Judiciary – and the Moroccan Association of Judges, I must have visited the country at least ten times over three years. Court officials from Morocco also travelled to the Netherlands at least six times. During these sessions, we worked together to study how the justice system is financed, how educational programmes for judges should be shaped, how to set up a membership system for the Association, etc. That helps tremendously and that is what cooperation is all about.”
Van Zutphen said that it was not only beneficial to share their practices with the Moroccans, but also for Dutch judges to travel to Morocco and experience how their courts are organised, how judges direct their courts, what sort of training they get and how Moroccan family law works. “Together, we developed a large programme, including training and sharing of best practices, such as the court spokesperson.”
The contacts that Van Zutphen made proved long-term. “As National Ombudsman, I also benefit from these contacts. Our Office recently started a new cooperation project with Morocco. When I am over there, I visit those old acquaintances to find out how they are doing and if there are issues that can be worked on.”
Continued engagement
In order to enable such a type of continued involvement, CILC should consider selecting experts for assignments beyond the participation in a single project – willing to continue cooperation outside the context of a formal project. Van Zutphen: “This requires training. You cannot simply appoint someone as an expert and send him or her abroad: you have to know who you are sending out and why.”
You cannot simply appoint someone as an expert and send him or her abroad: you have to know who you are sending out and why.
Something very important to Van Zutphen, which should be emphasised in the coming years within CILC projects, is to find a way to not cease cooperation after a project has ended. “In practice, this is very difficult. Everything we do requires funding, and this funding goes dry at some point. This is how it should be, but how can one ensure that the established contacts last and how can we assist the project partner when they face a problem related to the issue that was dealt with in the project?” Van Zutphen advocates that this should be given a lot of attention in the near future. “After CILC withdraws from a project, there should be follow ups as needed.”
Enriching experience
Another one of the contributions of CILC that should be emphasised is that towards the enrichment of the experts’ working experience.
Van Zutphen: “Obviously, first of all, CILC aims to achieve the projects’ goals and show results. Funding has to be spent responsibly and the people you send out ought to perform well and be knowledgeable about what they are doing. Working on CILC’s projects repeatedly helps experts build experience.”
Obviously, in many countries rule of law is quite complicated, requiring a lot of patience and persistence. But also ensuring you maintain the contacts that you once established. Do not simply judge a situation from your own morals and conclude you will not become involved.
In the future, Van Zutphen would like to strengthen and expand a continued cooperation with former participating experts. To illustrate the relevance of this, Van Zutphen refers to the activities of CILC in Rwanda. “I still feel the effects of the project we did there, in which we cooperated with the Rwandan judges training institute and facilitated the establishment of an academy that is functioning independently today. Currently, together with the Dutch and Rwandan experts, I am in a panel with the Minister of Justice in Rwanda, through which we try to achieve a couple of things together.” He says they can still build on what was established in the country years ago. “When in Rwanda, we can refer to the project we carried out in the past and make use of contacts made at the time.” This resulted in a visit of the Rwandan ambassador to the Dutch National Ombudsman to talk about opportunities for cooperation. “In that way, you build on work which was initially developed by CILC. That is wonderful. I enjoy seeing projects developing organically.”
Another project that clearly illustrates a long history of legal cooperation is a new project involving the Indonesian and Dutch Supreme Courts . “It’s a large project. It’s one instance that convinces me that this cooperation really does work.” However, Van Zutphen admits that at times, it’s really hard work, requiring a very long, sustained effort. “Obviously, in many countries rule of law is quite complicated, requiring a lot of patience and persistence. But also ensuring you maintain the contacts that you once established. Do not simply judge a situation from your own morals and conclude you will not become involved.”
Database of qualified people
Further, Van Zutphen believes that CILC should continue to put energy into filling its expert roster with qualified people willing and able to take part in international projects. “For this, cooperation with the Netherlands Training and Study Centre for the Judiciary or the Public Prosecution Office, universities and government departments is crucial to ensure the participation of their experts.” He acknowledges that this is a difficult task. “Preferably, given my previous role as a judge, I would like the Judiciary Council to consider it an advantage if a judge or prosecutor engages in an international project. They should be glad about their people experiencing life abroad to keep an open mind and to transmit Dutch know-how. The experts also return with knowledge and experience which is advantageous to the Netherlands. They can learn so much during their assignments.”
Van Zutphen acknowledges that while we are ready to export our legal capacity, we are not good at bringing in legal expertise from other countries. “When we plan to implement a new IT system, we travel the world to find out where the most advanced system is and how it works best. But if it involves how to shape our judiciary and laws and how these can be improved, we hardly ever search for examples implemented elsewhere. Sometimes we are insufficiently prepared to question our own assumptions which means we don’t look for best practices elsewhere.”
“In my work I have come across solutions which are not translatable into our culture, but that function perfectly in some other context.” To illustrate this, Van Zutphen recalls an eye-opening moment he had when attending an international conferences of judges, when he talked to a first-instance judge from Mali. “He told me he could only perform his duties as a judge because he was working in the village where he had grown up and people knew and trusted him. Immediately, my Dutch colleagues and I replied that in our context those ties might be considered a risk for the judge’s independence. However, when working on Curacao, I experienced a similar situation: it was a very small community and everyone knows who you are, what you do and what your task is. There are strong community ties. In such a context, independence will have an entire different meaning.”
Relationship between CILC employees and legal experts
Further, Van Zutphen notes that the relationship between the CILC project manager and a legal capacity building expert is very important and requires investment in the coming years. “Is it open enough? Is the expert prepared to give room to the CILC project leader to carry out the project? And is the project leader able to hold the right conversation to clarify what is expected from everyone in the project and, subsequently, step back to enable the expert to fulfill his or her task?” Often, the CILC employee is travelling with experts with a high social standing, such as the National Ombudsman, the Prosecutor-General or a court president. “These experts should be very aware of the fact that they are not selected for the project because of their position, but because of their specific expertise. This requires equality between expert and project manager.”
Finally, Van Zutphen believes the key to a successful project is action. There should always be someone who concludes a meeting or project with one concrete question: “What are you planning to do, after this gathering? Or what do you expect me to do tomorrow?” Van Zutphen: “That has become one of my tactics. Today I often conclude a meeting with: “OK, this was a very interesting conversation. What are you intending to do about all we discussed?” And after a week or so I contact them again to track their progress. This should become general practice in all international cooperation projects.”
