Post-conflict rule of law building: the need for a multi-layered, synergistic approach.

• Author: Stromseth, Jane

INTRODUCTION

In recent years, considerable blood, sweat, and treasure have been devoted to building the rule of law in the wake of armed conflicts and military interventions in many parts of the world. From Afghanistan to Iraq, Kosovo to East Timor, and Sierra Leone to Haiti and elsewhere, international interveners and local leaders have struggled to address both security and humanitarian challenges in societies seeking to overcome a legacy of violent conflict.

Increasingly, international and domestic reformers have come to appreciate that long-term solutions to security and humanitarian problems depend crucially on building and strengthening the rule of law: fostering effective, inclusive, and transparent indigenous governance structures; creating fair and independent judicial systems and responsible security forces; reforming and updating legal codes; and creating a widely shared public commitment to human rights and to using the new or reformed civic structures rather than relying on violence or self-help to resolve problems. (1)

Building the rule of law is no simple matter, although triumphal interventionist rhetoric occasionally implies that it is. The idea of the rule of law is often used as a handy shorthand way to describe the extremely complex bundle of cultural commitments and institutional structures that support peace, human rights, democracy, and prosperity. On the institutional level, the rule of law involves courts, legislatures, statutes, executive agencies, elections, a strong educational system, a free press, and independent nongovernmental organizations (NGOs) such as bar associations, civic associations, political parties, and the like. On the cultural level, the rule of law requires human beings who are willing to give their labor and their loyalty to these institutions, eschewing self-help solutions and violence in favor of democratic and civil participation. (2) Especially in societies in which state institutions and the law itself have been deeply discredited by repressive or ineffectual governments, persuading people to buy into rule of law ideals is difficult. (3) Building public trust in newly developing legal institutions can take years, and mutually reinforcing reforms may be needed in multiple areas--from constitutional and justice system reform to initiatives designed to strengthen access to justice and increase public confidence in the very idea of the rule of law. Both institutionally and culturally, building the rule of law also requires extensive human and financial resources, careful policy coordination between numerous international actors and national players, and at the same time an ability to respond quickly, creatively, and sensitively to unpredictable developments on the ground. (4)

For the last few years, my colleagues David Wippman, Rosa Brooks, and I conducted research in many societies--including Sierra Leone, Iraq, Kosovo, Bosnia, East Timor, and elsewhere--with the aim of understanding the many challenges of strengthening the rule of law in the aftermath of conflict. We interviewed national officials and civil society leaders, UN officials and staff, rule of law experts from different governments, and practitioners from many different NGOs and organizations, and we looked carefully at the unique circumstances and challenges in particular diverse, post-conflict societies.

Our resulting book, Can Might Make Rights? Building the Rule of Law After Military Interventions, is designed to pull together in one volume the disparate bits of knowledge gained in the past decade with the goal of understanding why past international efforts to strengthen the rule of law after conflict have so often fallen short, and to offer concrete suggestions for what might be done better in the future. (5) We deliberately aimed to write a practical book that would assist policymakers and field workers, offer enough theoretical, legal, and historical background to enable readers to contextualize and understand the basic dilemmas inherent in interventions designed to build the rule of law, and help to evaluate unique as well as recurring challenges in different post-conflict societies. (6) Our aim throughout was to examine the rule of law holistically, to make the whole elephant visible--not just the trunk or the tail--and to explore how the pieces fit together: from blueprints and constitutional frameworks for post-conflict governance, to security and justice system reform, to accountability for human rights atrocities, to initiatives aimed at building public and cultural support for the rule of law.

Recent experience holds both good news and bad. The bad news is that the track record of interveners in building the rule of law after conflict has not been very impressive. (7) This is in part because post-conflict societies--with legacies of insecurity, discredited political institutions, damaged infrastructure, limited resources, and public distrust--are usually not ideal environments for promoting the rule of law. (8)

But to some degree, the poor track record of rule of law promotion efforts is due to the failure of interveners to appreciate the complexities of the project of creating the rule of law. The good news is that we are finally beginning to have a sense of "best practices," an increasingly nuanced understanding of what works and what does not in post-conflict settings. (9) For instance:

* We now have a clear sense of the critical importance of immediately reestablishing basic security in the wake of military interventions, which in turn requires that the international community plan in advance for the rapid deployment of civilian police in the post-conflict period. (10)

* Similarly, we now understand that effectively reestablishing security means far more than simply ensuring that looting and violent crime are kept in check: it also involves ensuring that basic daily needs are met and that people have adequate food, water, shelter, medical care, and so on. (11)

* After more than a decade of well-intentioned but flawed interventions, we now understand the importance of addressing the various aspects of post-conflict reconstruction in a coordinated way, rather than allowing security, economic issues, civil society, and governmental issues all to be dealt with by separate offices operating on more or less separate tracks. (12)

* Perhaps most importantly, we have learned from failures in the past that there is no "one size fits all" template for rebuilding the rule of law in post-conflict settings: to be successful, programs to rebuild the rule of law must respect and respond to the unique cultural characteristics and needs of each post-intervention society. (13) Moreover, the rule of law cannot be imposed from on high; to enjoy legitimacy, it must be built with the support and leadership of the local population. (14)

This Article will highlight some of the major themes and conclusions of our book. First, I will discuss our diagnosis of why past efforts to strengthen the rule of law in the wake of conflict and intervention have not been as effective as any of us would like. (15) Second, I will sketch out the positive framework we offer: an integrated, synergistic approach to building the rule of law that keeps a clear focus on ultimate goals, is adaptive and seeks to build upon solid cultural foundations, and is systemic in stressing the need for mutually reinforcing reforms in multiple areas. (16) Third, I will discuss some of the key obstacles that need to be tackled in order to achieve more effective results on the ground. (17) Above all, I will stress the importance of a multi-layered approach to building the rule of law--an approach that focuses not only on strengthening institutions but also on building cultural and political support for the rule of law. Indeed, without a widely shared commitment to the idea of the rule of law, courts are just buildings, judges are just bureaucrats, and constitutions are just pieces of paper. (18)

1. WHY HAVE PAST POST-CONFLICT RULE OF LAW EFFORTS TOO OFTEN FALLEN SHORT?

   Despite millions of dollars and considerable human effort and sacrifice over recent years, initiatives to strengthen the rule of law in many post-conflict societies have often been disappointing in terms of their results and impact. (19) There are many reasons for this, including reasons specific to particular post-conflict countries, such as the extent to which domestic leaders are committed to rule of law reforms and are viewed by the public as effective and legitimate. But let me highlight three overarching reasons that have tended to recur across different societies.

   First is simply the inherent difficulty of the endeavor. In societies that have been wracked by violent conflict, building the rule of law, understood broadly, is incredibly hard. Particularly in post-conflict societies where political institutions are discredited, legal institutions are distrusted to the extent they exist at all, and infrastructures are devastated, positive change generally will require enormous commitments of time, energy, and resources. Spoilers may contend for power and resources and local leaders may oppose reforms. Overcoming public distrust and building institutions worthy of confidence can take many years. (20)

   To complicate matters further, efforts of external interveners to help build the rule of law are fraught with paradoxes and difficulties. Indeed, a paradox is inherent in the very project of trying to build the rule of law in the aftermath of a military intervention: a core idea of the rule of law is that reason is better than force as a means of resolving disputes, yet by definition, interventions resolve problems through force. (21) There is no way around this problem, but interveners should at least acknowledge the paradox inherent in trying to pull the rule of law from the barrel of a gun and recognize the ways in which the very fact of the intervention itself...