The new imperialism: violence, norms, and the "rule of law".

• Author: Brooks, Rosa Ehrenreich

TABLE OF CONTENTS

1. INTRODUCTION A. The Explosion in "Rule of Law" Promotion B. A String of Expensive Disappointments C. What's Gone Wrong? II. CASE STUDY: KOSOVO A. Looking for the Law B. Self-Determination Versus Human Rights C. Human Rights Versus "Law and Order" III. LAW, ORDER, AND VIOLENCE: A MISUNDERSTOOD RELATIONSHIP A. Collective Action and Conflict Entrepreneurs B. The Lure of Violence 1. Order Without Law 2. Nazism and the Order of Terror 3. Urban America and "The Code of the Street" 4. Bloodfeuds and Martyrs 5. "Anarchy" and State Dissolution C. The Moral Meaning of Violence D. Auto "Accidents" and Felony "Murders" E. Terrorism and Torture F. Atrocity and Duress IV. TAKING NORMS SERIOUSLY A. Three Clusters of Questions 1. Choosing and Justifying Norms 2. Effective Norm Change 3. Constraints B. Research Methods C. Preliminary Hypotheses V. CONCLUSION I. INTRODUCTION

   [It] is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it: not a sentimental pretence but an idea; and an unselfish belief in the idea--something you can set up, and bow down to, and offer a sacrifice to....

   --Joseph Conrad (1)

   1. The Explosion in "Rule of Law" Promotion

      The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in post-crisis and transitional societies. (2) The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. (3) Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. (4) In the wake of September 11, international and national-security experts also want to promote the rule of law, viewing it as a key aspect of preventing terrorism. (5)

      Given their conflicting priorities, human-rights advocates, economic analysts, and those concerned primarily with national and international security naturally differ on the proper law-reform priorities for transitional societies. They battle over whether commercial-law reform should precede criminal-law reform, whether the creation of new commercial courts should take priority over the creation of human rights and war crimes courts, and whether judicial reform ought to come before police reform. Since September 11, 2001, the three groups have also disagreed about the imperatives of the "war on terror," which many rights advocates see as privileging short-term security concerns over longer-term commitments to promoting human rights. (6) Nonetheless, the three groups (which can overlap) share the basic assumption that the rule of law is central to stable and modern democratic society. (7)

      The U.S. and other international actors (8) have supported programs designed to promote the rule of law for years, with many early efforts in Latin America. (9) The pace and funding levels of those programs increased dramatically in the early 1990s, as the collapse of the Soviet Union and the toppling of totalitarian regimes in other parts of the globe dramatically energized rule-of-law assistance. (10) According to Freedom House, a leading nongovernmental organization, fledgling democracies were springing up worldwide during the 90s, (11) and international organizations and donors rushed to help; in the wake of the Soviet Union's collapse, one commentator describes a veritable "explosion of rule-of-law assistance" around the world. (12)

      An increasing number of "failed states," civil wars, and human-rights crises have also helped fuel enthusiasm for rule-of-law promotion efforts, with ambitious rule-of-law programs in areas as disparate as Kosovo, East Timor, Sierra Leone, Afghanistan, and Iraq. Since 1990, the U.S. and other bilateral and multilateral donors have spent literally billions of dollars on promoting the rule of law, and those huge governmental sums have been matched by similarly large donations from private foundations. (13) The war on terrorism has given further impetus to U.S. and international enthusiasm for rule-of-law promotion; most recently, millions have been pledged for rule-of-law programs in post-Taliban Afghanistan and post-war Iraq. (14)

      Until less than a decade ago, rule-of-law assistance traditionally involved aid packages designed to encourage governmental law-reform initiatives and support law-related nongovernmental organizations ("NGOs"). (15) In recent years, however, with the upsurge in United Nations and NATO peacekeeping operations, there have been more and more situations in which the U.S., UN, and other key actors (The European Union ("EU"), the Organization for Security and Cooperation in Europe ("OSCE"), etc.) find themselves wholly or partially administering a society in crisis.

      In Kosovo, the UN, the EU, the OSCE, and NATO still collaborate to administer Kosovo under a UN umbrella, assisting the fledgling Kosovar governance structure; in East Timor, the UN was the central government until the recent elections and still administers numerous "government" programs; in Sierra Leone, the fragile indigenous government relies heavily on UN administrators and peacekeeping troops to preserve the still-tenuous peace and help with everything from education, health care, and food aid to legal and judicial reform.

      The Bush administration's early determination to resist Clinton-style "nation building" adventures collapsed in the wake of September 11. Today, Afghanistan is essentially run (though not particularly well run) by the UN, the EU, and dozens of international NGOs, with extensive assistance from U.S. troops and civilian personnel. International experts inspect Afghan prisons, train police and judges, plan elections, and help rewrite the laws. An international security-assistance force patrols the streets of Kabul, and American soldiers continue military operations to root out al Qaeda forces in the rest of the country. (16) In Iraq, the American presence is felt everywhere. Nearly 150,000 U.S. soldiers remain in Iraq today, (17) and Iraq is governed by an American civilian administrator who reports directly to the U.S. Department of Defense. (18) American military police are in charge at Baghdad police stations; American JAG lawyers supervise Iraqi courts; Iraqis accused of crimes are detained by U.S. soldiers at U.S. military bases. (19)

      In an increasing number of places, promoting the rule of law has become a fundamentally imperialist enterprise, in which foreign administrators backed by large armies govern societies that have been pronounced unready to take on the task of governing themselves. (20)

   2. A String of Expensive Disappointments

      Despite billions of aid dollars, programs to promote the rule of law have been disappointing. (21) For example, in Russia, more than a decade after a massive infusion of foreign aid began, there have been few rule of law success stories. Organized crime continues to play an enormous role in the economy, corruption among public official shows no sign of abating, economic hardship continues for millions, life expectancy remains lower than it was under communism, the prisons are overcrowded and allegations of abuse routine, and Russia's ill-starred and never-ending military campaign in Chechnya has killed thousands, including many civilians who died as a result of massive Russian bombardments in Grozny. (22)

      In Kosovo, four years after a massive NATO bombing campaign, things are little better, despite the fact that the international community literally took over the province's administration. For three years after the air campaign ended, Kosovo was run by over 40,000 NATO troops and a civilian UN administration that amounted to almost ten thousand additional foreigners (including NGO representatives, civilian police, and OSCE, and EU staff). (23) This worked out to roughly one foreigner for every thirty-six Kosovars, a ratio of foreign occupiers to locals that would have inspired the envy of nineteenth-century colonial powers. Today, more than 20,000 NATO troops still remain, (24) but ethnic intolerance continues to rage, with daily assaults and frequent murders; thuggishness and organized crime grow virtually unchecked. (25) The fledgling UN-sponsored judicial system remains unable to offer even reasonably speedy trials, much less consistent and independent rulings. (26)

      The same story could be told in dozens of other places, all at varying stages in the "transition to democracy" (an optimistic phrase). In Latin America, many commentators have concluded that the earlier era of rule-of-law promotion programs have had little lasting impact. (27) More recent experiments have similarly been of questionable value. In Sierra Leone, 17,000 UN peacekeeping troops from thirty-one countries (28) remain unable to ensure basic security in parts of Sierra Leone's territory, (29) much less guarantee accountability for past abuses. (30) In East Timor, 5,000 blue-helmeted UN troops and the civilian UN administration struggle to maintain their credibility in the face of economic depression and continued security threats from pro-Indonesian militias. (31)

      The news from Afghanistan is similarly disheartening: the delivery of aid funds has been delayed; security problems have prevented judicial and legal assessments beyond the capital city of Kabul; in much of the country women reportedly face serious retaliation if they fail to wear the burqa; prison conditions are reportedly appalling; a resurgence of Taliban military activity has killed hundreds of Afghans; many Taliban-era regulations are still enforced, although technically no longer valid; and the new chief justice has spoken publicly in favor of punishments such as the execution of adulterers by stoning or flogging. (32)

      Meanwhile, in Iraq, five months after President George W. Bush...