The Georgia Journal of International and Comparative Law
Fall, 2004
33 Ga. J. Int'l & Comp. L. 119
CONFERENCE: From Autocracy to Democarcy: The Effort to Establish Market Democracies in Iraq and Afghanistan: Panel 1: Establishing the Rule of Law
Thank you very much. I am delighted to be here and I am grateful to the Georgia Journal of International and Comparative Law for inviting me. It is particularly nice to see several people I have worked with in the past, such as Scott Carlson. I had the pleasure of working with Scott on legal issues in Kosovo while I was at the State Department and Scott was at the American Bar Association's Central and East European Law Initiative. It is also a pleasure to see Captain Travis Hall, who will be today's lunchtime speaker, sitting in the audience. I last saw Captain Hall in a very hot courtroom in Baghdad last August.
In my remarks today, I am going to pick up where Scott left off. Scott laid out some of the basic practical issues that arise when it comes to rebuilding the rule of law in any post-conflict society. I am going to speak today about some of the particular challenges associated with building the rule of law in Iraq.
Let me start with a couple of general observations. Scott pointed out how many complicated things there are to think about when you are talking about the rule of law, n3 which is a hard concept to get a handle on anyway. Most of us think that the rule of law is one of those "I know it when I see it" concepts, but we would be hard pressed to actually define "the rule of law." Following on Scott's comments, it may not surprise you if I suggest that when it comes to building the rule of law- whatever that is-in post-conflict settings, we are not all that good at it. When I say "we" here, you can take that to mean "we the international community," to a significant extent, and even more, "we the United States," since the United States has unfortunately been the sole architect of recent efforts to build the rule of law in Iraq.
As Scott said, maybe it is inadequate, or inaccurate, to offer "lessons learned" n4 from previous U.S. and international efforts to promote the rule of law, because although there are certainly plenty of lessons to be gleaned from past experiences and past failures, we have not done a particularly good job of truly learning any of those lessons, judging from our current practices. I want to suggest some of the reasons for that.
My first point: Building the rule of law is hard because it is hard. So it should come as no surprise that we are not very good at it. As Scott has suggested, there are a lot of interlocking pieces when we are talking about the rule of law. Rebuilding the rule of law requires making sure that police, judges, lawyers, and prison guards are all well-trained and adequately paid; making sure that the physical infrastructure of courthouses, prisons, and so on is adequate; rewriting legal codes; ensuring that the populace has accurate information about the changes; and so on, to name only a few of the components that go into creating that elusive state of affairs we call "the rule of law." Trying to make all of these moving parts work together in the right way in the wake of a violent conflict is exceptionally difficult even in the best of circumstances. And in the real world, we are usually not operating in the best of circumstances. In the real world, there are too few resources, coordination is a problem, people make mistakes, and everything ends up taking longer and being more complicated than you expected. So if we have not been all that successful in building the rule of law in post-conflict settings, it is partly because such a complex enterprise is inherently difficult.
Building the rule of law in post-conflict settings is also hard because you cannot rebuild the rule of law in a vacuum. You can have the world's most wonderful judicial system, but if most people do not have enough to eat it is not going to do them a lot of good and it is not going to do much to enhance public trust in government structures or the international community. You can have a fabulous set of legal codes, but if people are afraid to go out for fear of being kidnapped, attacked, or blown up by a car bomb, it is not going to do them a whole lot of good. I could go on, but I think that one of the biggest challenges is that the institutions of the rule of law have to be rebuilt at the very same time that security has to be reestablished. Reestablishing security in turn involves both protecting people from physical violence and also ensuring human security in the very broadest sense: ensuring that there is electricity, adequate and safe drinking water, and enough food, medicine, and shelter. This too is something that is exceptionally hard to do, even in the most favorable circumstances, with the best planning, and with maximum goodwill from the affected population.
It is particularly hard to build the rule of law in places like Iraq in the wake of military intervention. That is because of the complex paradoxes that are created by trying to rebuild the rule of law when you-"you" the United States; "you" the international community-are there by virtue of having relatively higher military capacities than anybody else, by virtue of having the biggest gun on the block.
To illustrate this point, let me offer a couple of contrasting anecdotes from my trip to Iraq last August. Almost a year has passed since then, and during that year some things have gotten better and some things have gotten much worse. Nonetheless, I think these short stories will give you some sense of how these difficulties and paradoxes actually play out on the ground.
I was in Iraq last August partly to do research for a book on post-conflict rule of law issues and partly as a consultant for a U.S.-based foundation that was considering making grants in Iraq to help fund various transitional justice and human rights-related mechanisms. Along with several colleagues, I visited various police stations, courts, NGOs, and government offices, and met with both Iraqi and Coalition officials to talk about the process of rebuilding the rule of law.
On our first day, we dropped in unannounced at an Iraqi police station in the middle of Baghdad. It was run like most of the other police stations in Baghdad at that point in time: by American military police, who were working to help train their Iraqi counterparts and rebuild the Iraqi police force. But in the interim, American MPs were essentially exercising effective control over the operations of each police station.
Our first encounter with an American military policeman on the ground was not an inspiring one. When we dropped in on this first police station, the officer in charge was a young lieutenant from the Midwest. He could not quite figure out what we were doing there. This was Baghdad, right after travel restrictions for civilians were lifted, so at that time there were not a lot of non-military personnel wandering around. The temperature was also about a hundred and thirty degrees, not really conducive to touring the city. Having a bunch of American law professors suddenly show up unannounced at this police station was just mind-boggling for him. He kept saying, "What are you doing here? Why do you want to be here?"
We were having a little trouble answering those questions ourselves-it was our first day in Baghdad. The whole police station, of course, had no air conditioning or electricity because sabotage and looting meant that the electrical grid for Baghdad could not provide adequate electricity for most of the city. So the lieutenant, and all of the other American soldiers, mostly eighteen-, nineteen-, and twenty-year-olds, were just sitting there sweltering, as were all the Iraqi policemen. We were dripping with sweat ourselves and trying to formulate coherent sentences, which was not easy under the circumstances. We managed to get out something like, "Well, we're interested in the rule of law."
The young lieutenant's response to this was to look at us as though we were completely cracked. He said, "There's no rule of law here. There's no law here." Despite the presence of our Iraqi interpreter and various Iraqi police, he went on to say angrily, "These Iraqis are all corrupt. They don't know what they're doing. They just beat suspects to get confessions out of them. They take bribes. We have to tell them what to do. They don't understand anything about law. There's never going to be law here in a million years. These people just aren't ready for it. They don't understand it." Needless to say, this was not a great example of winning the hearts and minds of the local population and it was a troubling reminder that cultural sensitivity generally is not the U.S. military's strong point.
This encounter at the police station was in stark contrast to our next stop, another unannounced visit, this time to an Iraqi court. It was sweltering there too- same lack of electricity-but we were met by a middle-aged Iraqi judge who, despite the heat, was wearing a heavy, dark suit and a tie. He looked very uncomfortable, but it was clear that maintaining professional standards was important to him. Once again, we explained that we were researching efforts to build the rule of law in post-conflict societies. He responded by saying, "Well, the first thing you need to understand, and that most Americans don't understand, is that Iraq has a very ancient legal tradition."
We nodded, and he said, "Are you familiar with the Code of Hammurabi?" We replied that we knew of the Code of Hammurabi, and he said, "Well, most Americans have never even heard of it. Iraq has an ancient legal culture. We don't need you to come here and tell us about what law is. We invented law. This is the cradle of Western civilization. We are the people who figured law out, thousands of years ago. But now your soldiers are coming in and telling us what to do, and you're not respecting our legal traditions or legal process. The first thing the Americans did after the war was to announce that they were immune from Iraqi legal process. So, if an American commits a crime, they're completely immune, there's nothing that we can do about it. The Americans are unaccountable. How can this be the rule of law?"
The Iraqi judge had a long litany of complaints about American-led rule of law programs. He said-and of course I am paraphrasing here-"We have all sorts of day-to- day problems in the administration of justice. You say that you want to respect our indigenous system. We are trying to get crime under control. But suspects will be brought in by the Iraqi police, and we will order that they be detained so that they can be tried and, half the time, some American will come in and order that they be released again. And the other half of the time, suspects are hauled in by somebody, including, maybe, the Americans, and we have a preliminary hearing, and decide that they ought to be released because there's not enough evidence against them. But then some American comes in and says 'No, no, no. We're going to detain them.' And off they go, taken to some military detention facility and we never see them again. What kind of rule of law is this? This is not the rule of law. You say you want the rule of law, but you seem to be setting an example of total arbitrariness and inability to respect our local processes."
This Iraqi judge was just as skeptical about the idea of the rule of law in Iraq as the young and undiplomatic American military police lieutenant, although he came at the issues from the opposite perspective. Although he was extraordinarily polite to us, given the circumstances, his attitude was clear: How can the U.S.-led coalition in Iraq claim to care about the rule of law when it maintains control- tenuous control-only through overwhelming force and when its actions strike many Iraqis as inconsistent and arbitrary? To put it a little differently, how can you pull the rule of law from the barrel of a gun?
The rule of law is an elusive state of affairs, although most people who design and implement rule of law programs might be reluctant to acknowledge this. As I said a few minutes ago, the rule of law is one of those "I know it when I see it" concepts. Few of us could define it, but most of us are pretty sure we know what it is. Of course, if you are not satisfied with relying on sheer instinct, you can read dozens of highly theoretical law journal articles arguing over just what the rule of law is or is not. But whether we rely on intuition or on carefully reasoned theory, most of us would probably agree that the rule of law has both a procedural dimension and a substantive dimension, and that the two are interconnected. That is, the rule of law has something to do with procedural fairness, with neutral mechanisms for decision-making, and with lack of governmental arbitrariness. Under the rule of law, laws are fairly and democratically enacted, they are known in advance, and they apply equally to everyone-not only to those with less power. The rule of law also has something to do with the conviction that processes based on rules and reason have to trump force; that rights are more important than sheer might. Saying this, of course, implies the existence of some shared substantive conception of rights.
This suggests an even deeper reason for why it is tough to create the rule of law. You can do as much as you like to set up judicial institutions and revise statutes, but the bottom line is that if one wants to achieve that magical thing-the rule of law-one not only has to create fair, appropriate, and reasonable laws and institutions, one also has to create a widely shared societal commitment to using those laws and institutions. To put it a little differently, the rule of law only works if people believe in it. People have to believe that rule of law mechanisms- the courts and all the other institutions of governance-are there for them, will work for them, and will be a viable alternative to other means of resolving disputes and getting things done. People have to have enough faith in legal institutions to make them willing to eschew violence, to eschew self-help, and to refrain from turning to the local warlord, militia leader, or extremist religious organization to solve their problems.
Conversely, if most people do not believe in the efficacy and worth of legal institutions, it will not do much good to create them, no matter how good they look on paper. It is not like the movie Field of Dreams, n5 where the refrain was, "If you build it, they will come." When we are talking about legal institutions, no one will necessarily come unless they are convinced that it makes some sense for them to do so. To use a wildly overused phrase, creating the rule of law is a matter of winning hearts and minds as much as a matter of creating institutions.
In Iraq today, American-led efforts to create the rule of law keep bumping up against a fundamental paradox. We govern Iraq-to the extent that we govern Iraq- because we had the military muscle to invade it and defeat Saddam's armies, even when many of our allies did not want us to invade Iraq. As the world's sole superpower, we were able to do what we wanted and no other nation could hope to stop us. We encountered a great deal of diplomatic opposition, but we invaded Iraq anyway. Maybe that was the right thing to do or maybe it was the wrong thing to do. Maybe it was a little bit right and a little bit wrong, or right in principle but done at the wrong time or in the wrong way. We could debate this eternally, but the bottom line here is that the United States was powerful enough to go its own way-right or wrong-and we did go our own way.
So our current adventures in Iraq began with a military invasion that was perceived by many around the world-including most ordinary Iraqis-as illegitimate, enabled by our superior military might rather than by international law. Not an auspicious start to the project of convincing a defeated post-conflict population to believe in law and in reason, rather than the efficacy of coercion. It is hard to proclaim the virtues of rights over might when you have just offered the world an object lesson in might makes right.
Since the end of the war in Iraq, the misunderstandings born of this paradox have only proliferated. Iraqis-like the judge I mentioned earlier-often see the actions of the Americans in the judicial arena as rather arbitrary and this spells danger for the project of creating the rule of law in Iraq. Under Saddam Hussein, Iraq's legal and judicial institutions were badly discredited because they were naked instruments of his political power. But if U.S. efforts to reform the Iraqi legal system appear arbitrary, many Iraqis may find it hard to tell the difference between Saddam's rule of law and American rule of law.
Of course, we all think, "Well, there's a huge difference," because after all, we are the good guys and we genuinely want fairness and reform, whereas Saddam ruled for his own benefit, not for the benefit of the Iraqi people. And of course I believe that there is a real and profound difference. But from the perspective of a young Iraqi who is plucked off the street by American soldiers and tossed into detention, maybe because he is hanging out with some bad guys or maybe because he is just in the wrong place at the wrong time, it may not seem that different on the ground.
It is tempting to conclude from what I have said that the problem is that the Coalition is being a little too heavy handed with the Iraqis and that if we want to create the rule of law, we should first take a big step back. I do not think that is the solution either. When you ask Coalition officials, "Why do you sometimes release Iraqis who the Iraqi judges think should be detained, and detain those who Iraqi judges order released?" you actually get a fairly persuasive answer. Coalition officials will give a somewhat more diplomatic version of the comments the young American lieutenant offered, saying something like, "Because we've looked at the evidence and sometimes people are being released or detained by the Iraqi judges on purely nepotistic grounds, or as a result of bribes or intimidation, or because the evidence against them was clearly trumped up, or they were beaten to get a confession. The Iraqi judges may claim to be fair, but they are not. We may appear to be arbitrary to onlookers who see only that we sometimes countermand what the Iraqi judges say, but in fact, we are applying genuine rule of law standards, insisting on due process and true fairness."
Much of the time, this is undoubtedly the case. It would be silly to deny that there are deep problems with the Iraqi judicial system. Although Iraq has many dedicated and honest police and judges, the political system under Saddam Hussein also left a legacy of corruption and abusiveness. The American willingness to settle disagreements by falling back on our superior force undermines our claim to stand for the rule of law in many respects. But the alternative would also undermine the rule of law. If we simply stood by, wringing our hands in the face of evident abuses, we would not be doing anybody a favor either.
This is the inherent paradox faced by those who wish to promote the rule of law but are in a position to do so only by virtue of their possession of superior force. Hobbes would have seen no contradiction here, but we Americans owe more of our assumptions to Locke and his "kinder, gentler" vision of the relationship between law, power, and legitimacy than to Hobbes' grim realism.
Is there any way around the difficulties and paradoxes I have outlined so far? I have said that building the rule of law in post-conflict societies is difficult in general because there are so many moving parts. It is an unbelievable coordination challenge, much harder than getting those rovers up to Mars, because you are dealing with human beings and not machines. It is particularly hard, as I have said, in the context of places like Iraq or Afghanistan, when the international community is present by virtue mainly of superior force, which is inherently somewhat contradictory to the idea of building the rule of law. I do not think there is any simple solution. Nevertheless, I think that there are lessons that could be learned, although, like Scott, I am skeptical about our collective capacity to learn them. Let me quickly suggest a few of these lessons.
The first lesson is, or ought to be, obvious: Plan in advance for these kinds of problems. For example, in the Iraqi context, lack of advance planning hampered U.S. efforts from the beginning. As a result, we missed a window of opportunity very early on after the war ended. By failing to anticipate looting, sabotage, crime, and the exceptionally high level of human need we faced in post-war Iraq, we missed our chance to create security, including human security in the broadest sense, and as a result we sacrificed a critical chance to win the trust of ordinary Iraqis.
A second lesson: Know the culture and the language well. During our visit to Iraq, my colleagues and I were tremendously impressed when we ran into Captain Hall and found him chatting away in Arabic to an Iraqi judge. It was great to see an American JAG officer speaking fluent Arabic and working with Iraqis as colleagues. Even our Iraqi interpreter was impressed. But when we told Coalition authorities how impressed we had been by Captain Hall and asked how many other JAG officers spoke Arabic, we were told sheepishly that Captain Hall was pretty much the only one. This is a real tragedy. If we hope to build trust and to work to promote the rule of law in post-conflict societies, we desperately need more people like Captain Hall, people who are capable of engaging in a respectful and appropriate way with local people, and engaging with them on their terms, not just on our terms.
Third, if we want to create the rule of law, we need to lead by example. That means that not only must we-our troops, our officials, and our civilians-abide by the highest human rights standards, but we need to do so visibly, in a way that is plain to all Iraqis and all the world. When there are abuses committed by American officials or soldiers, we need to make sure that the resulting investigations or disciplinary procedures are as public as possible. If we want to maintain credibility, it is critical that we avoid even the appearance of double standards. We need to show that despite our possession of superior firepower, we are willing to comply ourselves by the very same set of rules we want others to comply with.
Fourth, if we care about the rule of law, the United States needs to take a more multilateral approach. This paradox that I have talked about-how to bring the rule of law from the barrel of a gun-partly stems from the fact that in Iraq, the face of the guy with the gun and the face of the guy urging the rule of law are one and the same. With almost all the troops and civilians on the ground operating under the auspices of the American military, most Iraqis unsurprisingly find it difficult to distinguish between our claims about legitimate authority and rights and our sheer power. Making sure that both soldiers and civilians come from nations all over the world would not entirely solve this problem, but it would certainly help give rule of law efforts a bit more credibility.
Finally, the last point: We need to be more open about acknowledging these paradoxes, both to ourselves and to the affected populations in societies such as Iraq. In effect, we need to be honest enough to say to the Iraqis, "Look, we know it's hard to sell you on the value of the rule of law when we're the ones with the guns, and the tanks, and the helicopters. We're going to tell you to do some things that you may not want to do, and the bottom line is that you won't have much choice about some of these things, because we won and you lost. But we promise this won't be forever, and in a few years it's going to be entirely up to you again."
Broadcasting this message would make a lot of people angry but I suspect such an honest message might make people somewhat less angry than the current state of affairs. Right now, Iraqis rightly decry what they perceive as deep American hypocrisy: we have one group of soldiers out shooting at people to make them behave the way we want and another group of soldiers simultaneously standing around in Iraqi courts saying, "Come on, folks. Let's all join hands and believe in reason, rights, and the rule of law."
We are trying to have it both ways and we cannot, so we might as well admit the problem. There is no simple solution, but being straightforward about the nature of the problem is the beginning of the way forward. Thank you.