In Review:
New Publications on International and Comparative Law
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Can Might
Make Rights? Building the Rule of Law After Military Interventions
by Jane Stromseth, David Wippman & Rosa Brooks.
Cambridge University Press. 2006
“In Bosnia, we thought that democracy was the highest priority and we measured it by the number of elections we could organize. In hindsight, we should have put the establishment of rule of law first, for everything else depends upon it; a functioning economy, a free and fair political system, the development of civil society, and public confidence in police and courts.”
Ambassador Paddy Ashdown[i]
This quotation illustrates an ever-increasing emphasis within the international community on efforts to enhance, or in many cases create, a situation broadly referred to as the “rule of law.” The latest evolution in nation-building efforts, characterizing reform efforts as “rule of law” activities is increasingly replacing reference to democracy building as a focus of effort.
Can Might Make Rights, a project of the American Society of International Law, is the latest of several recent texts seeking to draw lessons out of the international community’s involvement in reconstruction efforts and is notable for its focus on such efforts as they have taken place, and are currently taking place, in the specific context of post-intervention environments.
Originally intending to write a book establishing clear legal and pragmatic criteria for humanitarian interventions and only in part on the issue of post-conflict efforts to rebuild the rule of law in the affected states, the authors’ efforts were overtaken by the military interventions in Afghanistan and Iraq – interventions not characterized as humanitarian interventions but justified by interveners as based primarily upon national and collective security concerns.
This topical shift is a great benefit, for the result is an excellent overview which for the most part brings the conceptual issues into focus in a way that benefits the practitioner. Can Might Make Rights should become part of the personal professional library of any individual involved in the planning and execution of or support to reconstruction efforts.
Can Might Make Rights is based upon several case studies, most notably the efforts in East Timor, Bosnia, Kosovo, Liberia and Sierra Leone, as well as the ongoing post-conflict reconstruction underway in Afghanistan and Iraq. The authors draw upon varied and extensive personal experience in reconstruction and development positions as well as a broad review of published and unpublished reports, studies, and other treatises concerning these and other post-conflict environments. From these sources and experience they draw specific, useful observations and guidance for practitioners.
The authors set the historical, legal, and theoretical foundation in their first two chapters. In the first chapter, and indeed throughout Can Might Make Rights, they generally focus on two points: First, building the rule of law is a holistic process, requiring an interdisciplinary effort across all reconstruction programs, which must address not simply the creation and support of institutions and programs but also the more delicate task of supporting (or in some cases creating) a cultural shift towards a rule of law culture. The second focus is that success in rule of law development will not be a simple linear process but rather a marathon effort, beset by internal contradictions and failures as well as successes. Only by recognizing this at the beginning, and maintaining patience, persistence, and humility in the overall process, can the international community hope for success. These factors makes up what the authors refer to throughout the text as a synergistic approach to rule of law efforts, one which is ends-based and strategic, adaptive and dynamic, and systemic.
The authors provide an overview of the international legal framework involving military intervention, the growing influence of human rights principles on both the justifications used for the initiation of intervention but also on the conduct during and after the intervention. They note the effect that the perceived legitimacy (or lack thereof) of an intervention has on the post-conflict reconstruction efforts and all the actors involved – interveners, local population, potential donor nations and organizations as well as the international community as a whole. In this, the authors do a good job addressing the policy and legal challenges and criticisms in these ongoing operations without sinking into political rhetoric.
Chapter 3 is a key chapter in the book, as it provides both the authors’ effort at defining the “rule of law” and sketches out the synergistic approach that the rest of the book advocates. Efforts to define rule of law have been made by almost every organization involved in reconstruction and reform efforts, with the effect that the term has attracted the criticism of being all things to all people. While other writings have made progress at distilling the essence of a definition,[ii] the definition provided by the authors here has the benefit of a focus on the post-intervention environment, and also is broad enough to support the synergistic approach developed throughout the rest of the book.
The authors define the rule of law in the following way:
The “rule of law” describes a state of affairs in which the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral, and universally applicable rules, and in a manner that respects fundamental human rights norms (such as prohibitions on racial, ethnic, religious and gender discrimination, torture, slavery, prolonged arbitrary detentions, and extrajudicial killings). In the context of today’s globally interconnected world, this requires modern and effective legal institutions and codes, and it also requires a widely shared cultural and political commitment to the values underlying these institutions and codes.[iii]
This is, to be sure, an extremely broad and comprehensive definition, susceptible to the charge that it is too broad to be of practical value. But such an allegation would miss the point the authors make throughout their text – that successfully establishing the rule of law, however one defines it, must take account of all of the components in the definition or the effort is unlikely to succeed. While this definition is broad, it is necessarily so and only the synergistic approach that such a definition supports will be worth undertaking.
The approach described recognizes that all players must keep “the big picture” in mind; that, to paraphrase John Muir, we find any single effort hitched to everything else. This synergistic approach is one that will resonate with the international military community, as NATO continues its exploration of an “Effects Based Approach to Operations” (EBAO), an approach to planning being developed in cooperation with the U.S. Joint Forces Command which recognizes the need for “building and sharing a common understanding of the strategic purpose and the problem to be solved; developing relevant goals and objectives, knowledge of the operational environment, and harmonization of the actions required to resolve the problem.”[iv] This approach recognizes the need for common understanding across the interagency and multinational team, looking at necessary effects within political, military, economic, social, infrastructure, informational, and other aspects of the operational environment.[v] Many of the themes discussed in Can Might Make Rights will resonate with military planners working in an EBAO process as they will with other, non-military, organizations increasingly moving to this holistic approach to planning.[vi]
The authors then focus on the case studies listed above and draw from those experiences different blueprints developed for approaching post-intervention rule of law reform, identifying what worked and what did not. They elaborate upon these blueprints in subsequent three chapters that turn to necessary building blocks for rule of law efforts. These building blocks include security, justice system reform, and accountability for atrocities. Each of these chapters explores the different approaches, challenges encountered, and the resultant success or failure in the case study nations.
Chapter 8 is risky chapter to include, setting forth the authors’ argument that rule of law efforts which focus on developing institutions and programs, but which fail to address the underlying cultural forces at work, are likely to fail. While the message of this chapter is intuitive to anyone who has or is working in the field, it is also the area of discourse which many professionals – military as well as civilian – are most hesitant to enter. The cloud of cultural imperialism looms, but the authors do an admirable job of facing the issue of establishing a rule of law culture as an inevitable one that, whatever else the interveners do, cannot be ignored.
The need to address underlying cultural challenges – the existing fear of formerly repressive police, deep-seated corruption, long-standing reliance on extra-governmental dispute resolution processes, all of which, if left unchecked, undermine the value in the programmatic and institutional reforms, is imperative. Focus on the Hippocratic maxim “first do no harm,” combined with the caution that cultural development must be given time to take root and develop, provides a realistic tone and the authors go to pains to list a number of best practices culled from the vast literature that has accumulated over the course of the interventions studied.
Finally, Chapter 9 focuses on the inter-related disciplines needed to effect planning, funding, and local ownership of rule of law programs. Again the focus is on synergy, patience, and persistence, drawing on the collective experiences of the authors and records to emphasize the need to avoid half-measures, to allow for adequate planning and revision of plans, and to ensure that the local community, those who would benefit from the advances made, are involved in the planning and development of the programs.
Interestingly, the authors begin their concluding chapter by saying “This is not an optimistic book.” Yet this statement is not accurate – quite the opposite. Optimism, truly held, does not require one to ignore the challenges, difficulties, and even failures inherent in any situation. On the contrary, true optimism requires only an underlying and deeply held belief that good can come from any situation – that there is no such thing as a hopeless situation. Can Might Make Rights is indeed an optimistic book, albeit also a realistic one. Running throughout the book is the sense that, even in the extremely difficult situation of a post-conflict environment, there is reason to maintain hope that the rule of law, with its associated benefits, can be achieved. Failures in specific efforts or programs are not reasons to stop trying, but rather are valuable sources of data so that future efforts are better. In their own words, the moral of this book “is that it is possible for outside interventions to help foster the rule of law, but only if interveners fully understand the nature and magnitude of the task – and only if interveners understand that the role outsiders can play is crucial but limited.”[vii]
This is not the definitive book on the subject – and indeed, that was never the authors’ stated purpose. Instead Can Might Make Rights succeeds in being a very valuable addition to the ongoing conversation. It is a conversation that will continue by necessity, and will, one hopes, include practitioner’s handbooks that continue an interdisciplinary, interagency, and multinational approach even as they write for their specific audiences. Other such efforts are underway. In Can Might Make Rights, these scholars do an excellent job advancing the dialogue.
CDR R. James Orr, JAGC, USN, is assigned as Deputy Legal Advisor to the North Atlantic Treaty Organization’s Headquarters, Supreme Allied Command Transformation in Norfolk, Virginia. The opinions expressed in this review are those of the author and do not reflect the position of the North Atlantic treaty Organization, the U.S. Department of Defense, or the Department of the Navy.
[i] Lord Paddy Ashdown, “What I learned in Bosnia,” N.Y. Times, Oct 8, 2002. Posted at http://www.ohr.int/ohr-dept/presso/pressa/default.asp?content_id=28294 (last accessed 15 February 2007). See also Report of the Secretary General “The rule of law and transitional justice in conflict and post-conflict societies”, U.N. Doc S/2004/616 (2004)
[ii] See, for example, Rachel Kleinfeld, Competing Definitions of the Rule of Law, in Promoting the Rule of Law Abroad; In Search of Knowledge, (Thomas Carothers, ed. Carnegie Endowment for International Peace, 2006), pp 31-74.
[iii] Can Might Make Rights, p. 78
[iv] Commander’s Handbook for an Effects-Based Approach to Joint Operations, U.S. Joint Forces Command Joint Warfighting Center, 24 February 2004
[v] Col. Jody Prescott “Effects Based Approach to Operations and its Implications for ACT” The Three Swords Magazine, 6 June 2006, available at http://jec.nato.int/files/SEP_06.pdf, last accessed 15 February 2007
[vi] See, for example, the Draft Handbook on SSR; Supporting Security and Justice, being developed by the Organisation for Economic Co-operation and Development, Directorate for Co-operation development Network on Conflict, Peace, and Development. http://www.oecd.org/dac/conflict (last accessed 6 Feb 2007)
[vii] Can Might Make Rights, p. 388
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