By: Peter J. Messitte, Senior Judge, U.S. District Court,
District of Maryland
The topic of this presentation may seem to many too dry. But
in fact the title is quite fitting for this discussion, and the topic has some
real juice in it. Goodness knows that throughout its history the U.S. has been
involved in many political interventions gone wrong or at best with seriously
mixed results. And I’m not just talking about recent forays into Iraq, Libya
and Afghanistan. Since the middle of the 19th century – apart from outright
wars – we have intervened (sometimes more than once) in, among other countries,
Mexico, Cuba, Panama, Nicaragua, Haiti, Dominican Republic, Guatemala, Iran,
and The Congo. And while there may be some political interventions that might
be said to have gone right – the Berlin Airlift? – there is one kind of U.S.
intervention which, on balance and over time, has much more frequently gone
right rather than wrong. I’m talking about U.S. involvement in rule of law
activities around the world.
Starting with a definition.
According to the World Justice Project, internationally
accepted standards define “rule of law”as a condition in which 1) governments,
their officials and agents as well as individuals and private entities, are
accountable under the law; 2) laws are clear, publicized, stable and just; are
evenly applied; and protect fundamental rights, including the security of
persons and property; 3) the process by which the laws are enacted,
administered, enforced, is accessible, fair, and efficient; and 4) justice is
delivered timely by competent, ethical, and independent representatives and
neutrals who are of sufficient number, have adequate resources, and reflect the
make-up of the communities they serve. The U.S., it’s fair to say, has been
actively involved in promoting ROL around the world since the mid-1960's.
The rule of law concept really got under way when, as two scholars
have put it, academics at Harvard, Wisconsin, Stanford and Yale Law Schools, provided
the ideological basis and much of the manpower for the U.S. to embark upon what
became known as the Law and Development Movement. In a small way, as a newly
minted lawyer serving as a Peace Corps volunteer in São Paulo, Brazil, in
1967-68, I was present at the creation and provided some of the young-men
power. In those days, the underlying assumption of the Law and Development
Movement was that, if legal and judicial systems could be improved, a given
country would be likely to produce more stable, political and social
institutions, especially economically productive institutions, e.g. meaning a
free market system that would attract especially foreign investment (by which,
I’m sure, was understood to be American investment).
The concept is still considered a valid one - it’s just that
in the early days, to be frank, American arrogance tended to get in the way.
The USAID-sponsored project I was involved in, for example, was intended to
help reform teaching methods in Brazilian law schools – instead of straight
professorial lectures, the Americans would help the law schools implement case
studies, the Socratic method, and the Q and A typical of American law schools of
the era. If we could only teach Brazilian lawyers to think like American
lawyers, then the future of Brazil would be assured.
A bit much, wouldn’t you say? And, as you might suppose,
this approach did not take. But in truth I think we were actually on the right
track. In fact, over the years since then, U.S. interventions in legal and
judicial activities around the world have continued, becoming more finely tuned
along the way, and in the course of time even taking on a new appellation –
rule of law.
So let me fast forward and give you some idea of what is
going on, what has been going on, in recent years as far as ROL activities are
concerned. Increasingly since the late 1960s, in addition to the U.S., the
World Bank, the United Nations Development Project (UNDP), the Organization of
American States (OAS), the regional development banks, even the international
development agencies of other countries (including Canada, Spain, Germany,
Japan and Sweden), have contributed to the ROL effort. I want to concentrate on
the American contribution.
Although there are a few other U.S. government agencies,
such as the Department of Commerce which have had a hand in international ROL
activities, two U.S. government departments have been the principal proponents
of these-efforts. One is the Department of State, working in
conjunction with the Agency for International Development (USAID), as well as
the Department’s Bureau of International Narcotics and Law Enforcement (INL).
The other is the U.S. Department of Justice, which works through its Overseas
Prosecutorial Development and Training program (OPDAT) and its International
Criminal Investigative Training Assistance Program (ICITAP).Both State and
Justice provide grants to civil society groups, pretty much exclusively from
the U.S., that help implement specific ROL programs.
One of the groups that USAID provides financial support to
is the American Bar Association Rule of Law Initiative (ABA ROLI), which is
active in ROL activities around the world, e.g. in Latin America and the
Caribbean and in Central and Eastern Europe. I was a member of the Advisory
Council of ABA ROLI for Latin America and the Caribbean for a number of years
and am currently Special Advisor to the Council. ABA ROLI’s initiatives have
unquestionably helped strengthen legal institutions, empower communities, and
improve the lives of every day citizens not only throughout Latin America where
I have been involved but, as I say, in many precincts around the world.
ABA ROLI works with local partners, including host country
governments, judiciaries, professional associations, law schools, universities
and other organizations of society to create strong, fair and more transparent
legal institutions. ABA ROLI has been involved in multiple areas of reform, which
broadly speaking, address seven basic themes: access to justice and human rights,
anti-corruption and public integrity, criminal justice reform and anti-human trafficking,
judicial reform, legal education reform and civic education, legal profession reform,
and women’s rights.
The Bureau of International Narcotics and Law Enforcement
Affairs (INL), which is part of the U.S.. State Department, has also been
working to improve ROL around the world. Its focus, of course, is primarily on
combating narcotics, but its mandate also extends to international crime,
including the creation of structures to combat terrorism and corruption. With
major assistance from INL over the past decade, Colombia has made major strides
forward in establishing its internal security. Homicides, political
assassinations, and kidnappings have actually been reduced. Cocaine production
is down. INL’s bilateral partnership with Colombia, it’s fair to say, has led
to a safer, more stable Colombia that has helped, to a considerable extent,
stem the flow of narcotics out of the country.
INL is also working together with interagency partners to
fight the narcotics trade in Afghanistan and Pakistan, and, as elsewhere, has
also engaged in anti-corruption and ROL efforts in general. Afghanistan
produces over
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80% of the world’s illicit opiates, which of course fuels
corruption and helps fund insurgency. INL efforts in Pakistan have included law
enforcement reform with police, prosecutors, and corrections officials. In
fact, throughout Latin America, Europe and Asia, Africa and the Middle East,
the United States, through INL, has provided similar financial and technical
assistance aimed at improving the professional capabilities of the police,
military, prosecutorial and judicial agencies so that they can more effectively
combat narcotics trafficking and transnational crimes.
In addition to USAID, the INL and the State Department, the
U.S. Department of Justice has also undertaken important ROL projects
world-wide.
The primary vehicle through which Justice works on rule of law
reform in the region is through its Office of Overseas Prosecutorial
Development Assistance and Training division (OPDAT), whose mission is to
“assist prosecutors and judicial personnel in other countries develop and sustain
effective criminal justice institutions.” OPDAT emphasizes international
cooperation in the investigation and prosecution of organized, especially
transnational crime, including terrorism.
One of OPDAT’s longest-running programs has been in Colombia
where, since 2000, it has been involved in implementing a Justice Sector Reform
Program to assist Colombian lawmakers, judges, prosecutors and police
authorities institute a Criminal Procedure Code. This new Code has been
a key component of the transition from Colombia’s formerly written,
inquisitorial criminal justice system to a more efficient, oral, accusatorial
one. OPDAT’s Resident Legal Advisers in Colombia have worked with the Colombian
Judiciary to improve the relationships between the criminal courts and other
criminal justice institutions. It has also helped to create the first
Victim/Witness Assistance Centers in Colombia, using a model employed by U.S.
Attorney offices in the U.S.
OPDAT’s second-largest program has been its Merida
Initiative in Mexico through which, since 2009, it has been providing technical
assistance to Mexican law enforcement and prosecutors in the investigation of
complex crimes (gang violence and money-laundering). Here, too, OPDAT has
assisted in implementing reforms of the country’s Code of Criminal Procedure
and in the areas of witness protection legislation and human trafficking. Since
2011, OPDAT has also been implementing Plan Diamante, a “capacity-building
effort” to prepare investigators and prosecutors as it transitions to an
accusatorial system. In other parts of the world, OPDAT has also been assisting
Albania, Kosovo, and Macedonia in developing or implementing new Criminal
Procedure Codes. It is currently working on victims assistance programs in
Albania and Kosovo; and continues a long term collaboration with South Africa,
where it provides legal expertise in the investigation and prosecution of
complex financial and economic crimes, as well as IP, crimes.
OPDAT has even worked with counterparts and attorneys in People's Republic of China to promote criminal justice reform in such matters as pre-trial
detention, search and seizure, and the use of appropriate evidence at trial,
including such U.S. prosecutorial techniques as plea bargaining. In fact, OPDAT
maintains resident legal advisors all over the globe, from the Caribbean to El
Salvador in Latin America and, for example, all throughout Africa and the
Middle East, from Algeria to Turkey and Yemen. These so-called RLA’s are
typically assistant U.S. attorneys seconded to our Embassies in these countries
to help implement the criminal justice programs.
Working alongside OPDAT in the Department of Justice is the
International Criminal Investigative Training Assistance Program (ICITAP),
which began its operations in 1986 in Latin America. ICITAP was created with
funding from the U.S. State Department with the goal of building the capacity
to prosecute key human rights cases in El Salvador and to improve the criminal
investigative capacity of police forces in Latin America in general. Since
then, ICITAP has conducted training programs in every country in Central
America, more than half of the countries in South America, and nearly all of
the Caribbean. These programs focus on criminal justice reform, anticorruption,
forensic science, human rights, transnational crime, and advanced investigative
skills. ICITAP is also involved in some of the major U.S. assistance efforts in
the region that I mentioned earlier – Plan Colombia and the Merida Initiative
in Mexico – which are funded by the State Department’s Bureau of International
Narcotics and Law Enforcement Affairs.
ICITAP’s largest police assistance effort in Asia has been
in Indonesia, where its program has expanded to include that country’s
development of maritime, port and border security, emergency response to
natural disasters, and protecting critical marine and forest ecosystems from
exploitation. In Ukraine, ICITAP has worked with the Ministry of the Interior
to improve IT related to law enforcement, including the development of
software, hardware, and telecommunications focusing on, among other things,
cyber-crime. Also in Ukraine, ICITAP assists in intelligence gathering and has
a partnership with the State Customs Service to help reform trade and
transportation, including an integrated system for cross-border shipments.
The number of interventions such as these – by ICITAP,
OPDAT, the Bureau of International Narcotics, ABA ROLI – is much larger; I have
only given several examples of what has been, is being done.
So
what is the take-away from all this?
Not all of these undertakings have
been successful – at least not yet.
But we’re not talking about a finite
process here. What’s been going on has been much more in the nature of
traditional international diplomacy – a process that goes on continuously and
indefinitely. International relations are maintained, common problems are
discussed, solutions are proposed, some take root, some perhaps not. But new
approaches will be tried.
In fact I like to think of what we in the rule of law
business do as “legal and judicial diplomacy.” It’s fairly quiet, low-key and
steady, and hopefully we’re getting better at it all the time. But rule of law
is ultimately far-reaching. It’s at the heart of democracy – a value America
has always professed to promote (and, in my view, genuinely has tried to
promote, most of the time anyway). For all the unkind things about U.S. foreign
policy that one may hear from abroad, our legal and judicial systems – whatever
their frailties – remain the gold standard for most of the world. The Romans
and Justinian had their day, Napoleon and his Code Civile theirs. But
since the 19th century and much more so in the 20th and now in the 21st
centuries, U.S. legal and judicial institutions have been the most influential
systems in most parts of the world. And the fact is we do have much to
offer in terms of reasonable laws, more or less evenly applied, efficient court
organization, national procedural devices and an abiding concern for due
process and access to justice.
Let’s hope that we can continue to share these concepts with
others – and, in doing so, that we act with appropriate sensitivity, humility,
and with openness on our own part to the different ideas of others.
*Note: This article has been adapted from a speech by
Judge Messitte at the Cedar Lane Unitarian Church, Bethesda, Maryland, in
December, 2015.
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International
Judicial Monitor