Invoking the rule of law in post-conflict rebuilding: a critical examination.

• Author: Rajagopal, Balakrishnan

INTRODUCTION

Establishing the rule of law is increasingly seen as the panacea for all the problems that afflict many non-Western countries, particularly in post-conflict settings. (1) Development experts prescribe it as the surest shortcut to market-led growth; human rights groups advocate the rule of law as the best defense against human rights abuses; and, in the area of peace and security, the rule of law is considered the surest guarantee against the reemergence of conflicts and the basis for rebuilding post-conflict societies. Indeed, the rule of law has occupied this central position at least since the early 1990s, as Thomas Carothers recognized in a well-known article on the revival of the rule of law some years ago. (2) Therefore, in a very direct sense, the rule of law has come to be considered the common element that development experts, security analysts, and human rights activists agree upon, and as the mechanism that links these disparate areas. Constitution making is also seen as a cornerstone of rule of law activities in post-conflict settings, (3) but this Article focuses more on the diverse policy background against which legal reform is sought to be carried out and justified in "everyday" politics, and much less on constitution making, as such.

This Article argues that this newfound fascination with the rule of law is misplaced. Underlying this "linkage" idea is a desire to escape from politics by imagining the rule of law as technical, legal, and apolitical. In other words, there is a tendency to think that failures of development, threats to security, and human rights violations could all be avoided or managed by a resort to law. This Article traces the characteristics of this idea and the different strands of policy and disciplinary discourses that have led to this conclusion, and argues that there is, in fact, a need to retain politics at the center of the discussions of development, human rights, and security. In addition, it argues that the invocation of the rule of law hides many contradictions among the different policy agendas themselves, such as between development and human rights or between security and human rights, that cannot be fully resolved by invoking the rule of law as a mantra. It is far more important to inquire into the real consequences of these agendas on ordinary people. Focusing attention on the rule of law as a broad, if not lofty, concept diverts attention from the coherence, effectiveness, and legitimacy of specific policies that are pursued to ensure security, promote development, or protect human rights. The rule of law agenda threatens to obfuscate the real tradeoffs that need to be made in order to achieve these worthy goals. These tradeoffs are real, partly due to the contradictions of socioeconomic development and political necessities in post-conflict settings and partly due to the contradictions between powerful third-party external actors with their own agendas and expert discourses who seek to intervene during "constitutional moments" (4) of post-conflict reconstruction in the Third World.

The post-Cold War "consensus" on the rule of law must be seen against the background of two well-known, macro-level developments. First, an increasing number of intra-state conflicts around the world have led to concerns of state failure, prompting new generations of peace operations sanctioned by the United Nations (UN) Security Council, (5) as well as situations of classic military occupations, such as the ongoing situation in Iraq. Second, the structurally violent and divisive nature of neoliberal development interventions has resulted in human rights violations and other social costs through such devices as the privatization of key national industries that increase unemployment, speculative bubbles in international finance transactions that have massive impacts on real estate and housing markets, mass population displacement and urban migration, the elimination of subsidies for food and services, and the introduction of user fees for infrastructure. (6) Against this background, the relationship between the disparate agendas of development, security, and human rights cannot be underestimated, and the invocation of the rule of law will not substitute for an honest evaluation of the costs and benefits of different policies, norms, and institutions.

This Article proceeds as follows: Part I traces the historical origins of the links among security, development, and human rights discourses since World War II and identifies some recurring themes, despite real differences among them. Part I also points out the ways in which the lines among these discourses began blurring since the 1970s and during the post-Cold War period, especially in the context of peace operations. Part II discusses the convergence between the human rights and rule of law discourses in the post-Cold War period, but also points out the continuing differences between the two. Part III examines the meaning of the rule of law in the context of development and finds that the rule of law is no substitute for human rights. Part III also questions whether the rule of law is even a key requirement for successful economic growth. Part IV examines the meaning of the rule of law in the context of security and finds that reliance on this concept cannot hide the more fundamental question of legitimacy in the post-9/11 world. In the field of security, it would not be prudent to lessen the reliance on the discourse of human rights for the fuzzier discourse on the rule of law. The Conclusion then offers some reflections on the lessons that have been learned about how best to capture the synergy that may exist between different fields of international interventions in the security, development, and human rights policy domains.

1. SECURITY, DEVELOPMENT, AND HUMAN RIGHTS: ORIGINS AND NATURE OF THEIR RELATIONSHIP

   The discourses of security, development, and human rights have diverse origins, but multiple, often unrecognized, intersections. Briefly put, the discourse of security emerged from the realist critiques of international relations. (7) Influenced by scholars such as Hans Morgenthau, it was primarily conceived in statist terms and was focused on managing the conflicts that arose between nation-states. (8) This notion of security was predominant during the Cold War, when threats to the inter-state system were perceived to be severe. (9) The security studies scholarship of this period was correspondingly dominated by political scientists who began by acknowledging the centrality of the doctrine of national security. (10)

   The discourse of development, which has been much contested since its emergence in the 1940s, had its origin in colonial rule, development economics, and political development theory; it focused on the economic growth of "new" nation-states after decolonization. (11) Largely utilitarian in its calculus, the discipline of development tended to focus on measurement of aggregate indices of welfare, drawing on national income estimates from the 1940s. (12)

   As can be readily seen, the discourses on security and development were natural allies. Both discourses relied heavily on the notion of the territorial nation-state and drew their force from their ability to supply content to aspects of nationalism, both territorial and developmental. The welfare of individuals, or of sub-state entities, did not figure prominently in the study of either security or development. (13) In

   addition, the two discourses were also linked from the beginning for different reasons. Development interventions tended to be seen by Western leaders as one of the best tools available to fight the communist menace, offering incentives for restive rural peasant populations not to rebel, while cementing the patron-client relationships between friendly regimes in power and their key domestic constituencies. (14) As U.S. Secretary of State John Foster Dulles stated in 1956, "We are in a contest in the field of economic development of underdeveloped countries.... Defeat ... could be as disastrous as defeat in the armaments race." (15) When radical communist movements swept to power in several Third World states during the 1950s, the response by the West was swift; the iron fist of repression and foreign intervention was brought down heavily on these countries, while the velvet glove of development was applied to pacify the restive rural masses. (16) For example, these events forced the demotion of Latin America by the United States to an "underdeveloped area," from its pre-war status as a region with a range of "developing" economies, in order to justify its foreign assistance and, therefore, security rationale. (17) Indeed, the different paradigm shifts in development discourse--for example, from growth with redistribution to poverty alleviation and basic needs in the 1970s--were explicable by the proxy wars in the Third World between the Cold War blocs. (18) The "war on poverty" announced by Robert McNamara at the World Bank in 1973 had a distinct security rationale to it. (19) Political development theorists provided theoretical support for this by justifying the importance of political stability and repression for economic growth to prevent the countries concerned from falling to the communists. (20) This focus on the linkage between security and development continues to this day, as demonstrated by the emphasis on development in the most recently published U.S. National Security Strategy, released in 2002, though with a focus on "failing" states and "the embittered few" rather than the communists. (21) Thus, the language has changed, but not the rationale.

   The emergence of the human rights discourse did not fundamentally threaten this symbiotic relationship, at least not at first. Conceived as a set of state obligations towards citizens, the human rights system fit easily into the nation-state focused world of security...