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CAN MIGHT MAKE RIGHTS?

This book looks at why it is so dif¬cult to create “the rule of law” in post-
con¬‚ict societies such as Iraq and Afghanistan and offers critical insights into
how policymakers and ¬eld-workers can improve future rule of law efforts.
Aimed at policymakers, ¬eld-workers, journalists, and students trying to make
sense of the international community™s problems in Iraq and elsewhere, this
book shows how a narrow focus on building institutions such as courts and
legislatures misses the more complex political and cultural issues that affect
societal commitment to the values associated with the rule of law. The authors
place the rule of law in context, showing the interconnectedness between the
rule of law and other post-con¬‚ict priorities, from reestablishing security to
revitalizing civil society. The authors outline a pragmatic, synergistic approach
to the rule of law that promises to reinvigorate debates about transitions to
democracy and post-con¬‚ict reconstruction.

Jane Stromseth is a professor of law at Georgetown University Law Center,
where she teaches in the ¬elds of international law and constitutional law. She
has written widely on international law governing the use of force, humanitarian
intervention, accountability for human rights atrocities, and constitutional war
powers. She has served in government as a director for Multilateral and Human-
itarian Affairs at the National Security Council and as an attorney-advisor in the
Of¬ce of the Legal Adviser at the U.S. Department of State. She serves on the
editorial board of the American Journal of International Law.

David Wippman is Vice Provost for International Relations, Cornell University,
and a professor of law at Cornell University Law School. He previously served
as a partner at Reichler, Appelbaum, & Wippman, a ¬rm specializing in the
representation of developing countries, and as a director for Multilateral and
Humanitarian Affairs at the National Security Council. Wippman is coauthor
(with Steve Ratner and Jeff Dunoff) of International Law: Norms, Actors, Pro-
cess (2d ed. 2006).

Rosa Brooks is a professor of law at Georgetown University Law Center, cur-
rently on leave while serving as Special Counsel at the Open Society Institute.
Before entering academia, Brooks served as a senior advisor at the U.S. Depart-
ment of State™s Bureau of Democracy, Human Rights and Labor and as a con-
sultant for Human Rights Watch and other nongovernmental organizations. She
serves on the executive council of the American Society of International Law,
and she writes a weekly opinion column for the Los Angeles Times.
Can Might Make Rights?
BUILDING THE RULE OF LAW
AFTER MILITARY INTERVENTIONS


Jane Stromseth
Georgetown University Law Center

David Wippman
Cornell Law School

Rosa Brooks
Georgetown University Law Center




A project of the American Society
of International Law
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521860895

© Jane Stromseth, David Wippman, and Rosa Brooks 2006


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2006

978-0-511-24549-7 eBook (EBL)
isbn-13
isbn-10 0-511-24549-1 eBook (EBL)

978-0-521-86089-5 hardback
isbn-13
0-521-86089-X hardback
isbn-10

978-0-521-67801-8 paperback
isbn-13
0-521-67801-3 paperback
isbn-10

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
For our families
Contents




page ix
Acknowledgments

1 Introduction: A New Imperialism? 1

2 Interventions and International Law: Legality and
Legitimacy 18

3 What Is the Rule of Law?: A Pragmatic De¬nition and a
Synergistic Approach 56

4 Blueprints for Post-Con¬‚ict Governance 85

5 Security as Sine Qua Non 134

6 The Challenge of Justice System Reform 178

7 Accountability for Atrocities: Moving Forward
by Looking Backward? 249

8 Creating Rule of Law Cultures 310

9 Enhancing Rule of Law Efforts: Planning, Funding, and
Local Ownership 347

10 Conclusion 388

Index 393




vii
Acknowledgments




The American Society of International Law sponsored this book project, and
we are permanently indebted to Charlotte Ku, Rick LaRue, and Sandra Liebel
for their generous assistance during the book™s long incubation period. We
also thank the U.S. Institute of Peace and the Carnegie Corporation for their
generous ¬nancial support of this project, and John Berger at Cambridge
University Press for shepherding this book into print.
We also bene¬ted from exceptional research assistance provided by law
students at Georgetown University Law Center, University of Virginia School
of Law, and Cornell Law School. In particular, we would like to thank Gabe
Rottman, Maya Goldstein-Bolocan, Milan Markovic, Ruthanne Deutsch,
and Elizabeth Keyes at Georgetown; Kevin Donohue and Leah Edmunds
at Virginia; and Melissa Baker, Sarah Bernett, Ilana Buschkin, Heidi Craig,
Jennifer Filanowski, Cailin Hammer, Ralph Mamiya, Miles Norton, and
Ulysses Smith at Cornell. Pam Finnigan, Anne Cahanin, and Susan Potts all
provided extremely helpful secretarial support.
James Schear, John Ehrenreich, and Peter Brooks provided numerous
valuable comments and suggestions along the way; and Stephen Scher pro-
vided excellent editorial assistance. Michele Brandt, Charles Call, Scott
Carlson, Deborah Isser, Seth Jones, Rama Mani, David Marshall, Brett
McGurk, Laurel Miller, Marina S. Ottaway, Michele Schimpp, Eric
Schwartz, and Taylor Seybolt all read an early draft of the manuscript and
provided comments at a workshop held in November 2004 at the American
Society of International Law; we apologize for not always heeding their
advice.
We are also grateful to the dozens of people in Iraq, East Timor,
Sierra Leone, Kosovo, Bosnia, Washington, New York, Geneva, Brussels,
Amsterdam, and The Hague who patiently discussed their work and ideas
with us. For assistance in East Timor, we are particularly grateful to Kim
Hunter, Asia Foundation Country Representative in East Timor; Annelise


ix
x ACKNOWLEDGMENTS


Parr, Executive Assistant to the Special Representative of the U.N. Secretary-
General; Foreign Minister Jose Ramos-Horta; and U.S. Ambassador G.
Joseph Rees. In Sierra Leone, special thanks are due to David Crane, Prose-
cutor of the Special Court for Sierra Leone; and Eric Witte, Special Assistant
to the Prosecutor.
CHAPTER ONE




Introduction: A New Imperialism?




It is hard to ¬nd anything good to say about imperialism. Fueled by greed
and an easy assumption of racial and cultural superiority, the imperialism of
the 19th-century European powers left in its wake embittered subject pop-
ulations and despoiled landscapes. Traditional governance structures (some
just, some unjust) were displaced by European implants, indigenous cul-
tural practices suppressed, and natural resources ruthlessly exploited for the
bene¬t of colonial elites and distant European overlords. Although imperi-
alist ideologies and practices were frequently justi¬ed by reference to lofty
ideals (the need to bring civilization, industry, or Christian values to more
primitive nations, for instance), today there are few who would defend
imperialism.
Until quite recently, most scholars were content to declare that the age of
imperialism was over and good riddance to it. After World War II, strong
international norms emerged favoring self-determination, democracy, and
human rights and condemning wars of expansion and aggression. In the
1950s and 1960s, independence movements in colonized regions gained
strength and moral credibility. As the possession of colonies increasingly
became a political liability, most of the former imperial powers divested
themselves of the trappings of empire. Some did so with almost unseemly
haste, with a quick election, a ceremonial changing of the ¬‚ag, and a series of
bows and handshakes suf¬cing to transfer governmental power from foreign
hands to those of the indigenous leaders.
By the time the Cold War ended, imperialism seemed a relic of a bygone
era. The term remained handy as a disparaging metaphor used by those
inclined to criticize American foreign policy muscle-¬‚exing, but for the most
part, imperialism seemed to be as extinct as the dodo bird: it had collapsed
under its own weight, a victim of greed, sloth, and insuf¬cient brainpower.
Although the former imperialist powers continued to dominate the world
stage militarily and economically, they had gone out of the business of invad-
ing and exercising permanent military control over foreign lands.
1
2 CAN MIGHT MAKE RIGHTS?


But something odd happened in the years since the early 1990s. For rea-
sons that are complex, many of the same powerful western states that con-
tritely rejected imperialism a few short decades ago today are increasingly
resorting to military force to intervene in the territories of other states, and
in many cases, they are remaining on as de facto governments years after
the ¬ghting ends. Consider the past decade™s interventions in Bosnia, Haiti,
Kosovo, East Timor, Liberia, Sierra Leone, Afghanistan, and Iraq. Ironically,
these recent military interventions have generally been made in the name of
the very same values that led to the rapid dismantling of imperialist struc-
tures in the second half of the 20th century: human rights, democracy, and
a rejection of the use of aggressive war as an instrument of foreign policy.
Although most of the recent interventions have been engaged in on behalf
of “the international community,” or at least some sizeable subset thereof,
most of the intervening states have been western states “ mainly the United
States and the North Atlantic Treaty Organization (NATO) powers. Not
entirely coincidentally, most of the states intervened in (the “failed states”
like Sierra Leone and the “rogue” states like Iraq) have been states formerly
subject to imperialist rule.
Some of these recent interventions are usually seen as having been essen-
tially humanitarian in nature (Kosovo, East Timor). Others were motivated
primarily by national and international security considerations, with human-
itarian concerns very much a secondary motive (Afghanistan, Iraq). Each
of these recent interventions has had both passionate defenders and pas-
sionate detractors, and there is little question that from the perspective of
international law, some recent interventions have been more justi¬able than
others.
Nonetheless, whether they are justi¬able or unjusti¬able, wise or unwise,
such military interventions will almost certainly be a fact of life for some
time to come. The “international community” “ and the United States, as
the most signi¬cant military and economic power in the world today “ will
likely engage in, or assist, many more such interventions, at least in instances
where there appears to be a clear threat to U.S. security.
In part, this is because the events of September 11, 2001 left the United
States and many of its NATO allies determined to root out terrorism and
other global security threats wherever they can be found, through the use
of military force when necessary. The desire to incapacitate the terrorist al-
Qaeda network drove the U.S.-led military intervention in Afghanistan; the
perceived threat of weapons of mass destruction was the primary driver of the
subsequent U.S.-dominated intervention in Iraq. Military interventions (and
the deployment of peacekeeping forces) will also continue to be motivated in
part by broader humanitarian concerns, such as the need to prevent genocide
and other mass atrocities and the need to restore peace and stability in regions
devastated by civil war.
3
INTRODUCTION: A NEW IMPERIALISM?


Frequently, of course, the motives behind military interventions will be
complex and mixed. In Haiti, for instance, U.S. military interventions (both
in 1994 and in 2004) were motivated partly by humanitarian considera-
tions (a concern about political repression and indiscriminate bloodshed)
and partly by more pragmatic (and self-interested) considerations: the desire
to prevent a massive in¬‚ux of refugees from Haiti to the United States, for
instance. In the age of globalization, there can often be no neat distinc-
tion between “humanitarian” concerns and “security” concerns. Repression,
poverty, and injustice can fuel terrorism, instability, civil war, and organized
crime, and these in turn can lead to still more repression, poverty, and injus-
tice. In the future, many military interventions are likely to arise jointly out
of humanitarian concerns and security concerns.
The military interventions driven by interwoven humanitarian and secu-
rity concerns have often been compared “ and contrasted “ to traditional
imperialism. Indeed, many commentators “ some approving, some less so “
have referred to recent interventions as “liberal imperialism” or “the new
imperialism.” Unlike earlier imperial powers, those western states and
regional powers that have backed recent military interventions have explic-
itly (and, on the whole, credibly) disclaimed any desire to exercise permanent
control over defeated populations and territories or to gain economically
from their military ventures. Also, today™s interventions tend to be multilat-
eral in nature, often (though not always) authorized by the United Nations
(UN) or parallel regional structures. But like earlier imperial powers, today™s
interventionists ¬nd themselves acting as de facto governments in dysfunc-
tional and war-torn states.
This may be inevitable. Creating durable solutions to humanitarian
and security problems requires a long-term commitment to rebuilding and
reforming repressive or con¬‚ict-ridden societies. In particular, long-term
solutions require rebuilding (or building from scratch) the rule of law: fos-
tering 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 com-
mitment to human rights and to using the new or reformed civic structures
rather than relying on violence or self-help to resolve problems. Yet these
tasks often cannot simply be left entirely to local populations, because in the
immediate wake of interventions, such societies usually continue to be riven
by the same con¬‚icts and problems that motivated the intervention in the
¬rst place. After genocide, ethnic cleansing, or war, few societies are imme-
diately able to “get back on their feet.” Most need “ and many demand “
substantial outside assistance in reestablishing security and reconstructing
governance and economic institutions. Post-con¬‚ict reconstruction is slow,
expensive, and fraught with dif¬culty, and in part for that reason, today™s
“liberal imperialists” are often somewhat reluctant imperialists. If the main
4 CAN MIGHT MAKE RIGHTS?


goals of the old imperialists were territorial expansion and economic gain,
and imperialist governing elites enjoyed broad support from their domes-
tic constituencies, the architects of today™s military interventions ¬nd them-
selves in a far different situation. Interventions are a costly and danger-
ous business, diverting government resources away from domestic priorities
and risking the lives of the intervening power™s soldiers. The electorates of
western nations are often loathe to support expensive, risky foreign ventures
that offer few clear short-term domestic dividends. Because modern interna-
tional and domestic norms forbid interventions designed explicitly to exploit
the resources of other states, today™s interventionists must generally make
a public commitment to building just, democratic, peaceful, and prosper-
ous societies in the areas that they control, if they are to avoid worldwide
condemnation. Yet building just and prosperous societies is complex and
requires intervening powers to make virtually open-ended commitments of
resources and people to post-intervention societies “ which is, again, likely
to be less than popular with domestic constituencies concerned about how
their tax dollars are spent.
Thus, while a potentially critical world watches events unfold in real time
on the Internet and CNN, today™s “new imperialists” must pledge them-
selves to ensuring peace and stability, rebuilding damaged infrastructures
and economies, protecting vulnerable populations, nurturing a strong civil
society, fostering legitimate indigenous leaders, and supporting democratic
state institutions. Since today™s interventionists generally intervene in the
name of global order and “the rule of law,” they must consequently strive
to build the rule of law in the societies in which they intervene, at risk of
losing their own global credibility. They must work closely with regional
and international organizations and with a wide range of nongovernmental
actors (from human rights groups to humanitarian aid organizations). At the
same time, they must satisfy domestic constituencies concerned about costs
and domestic social and economic priorities.
This is no easy task. 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 struc-
tures that support peace, human rights, democracy, and prosperity. On the
institutional level, the rule of law involves courts, legislatures, statutes, exec-
utive agencies, elections, a strong educational system, a free press, and inde-
pendent 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.
5
INTRODUCTION: A NEW IMPERIALISM?


Especially in societies in which state institutions and the law itself have
been deeply discredited by repressive or ineffectual governments, persuad-
ing people to buy into rule of law ideals is dif¬cult. Both institutionally
and culturally, building the rule of law also requires extensive human and
¬nancial resources, careful policy coordination between numerous interna-
tional actors and national players, and at the same time an ability to respond
quickly, creatively, and sensitively to unpredictable developments on the
ground.
Today™s interventionism presents a mix of old and new problems. In the
age of human rights, what goals, if any, justify military interventions? In
what ways do the values and methods of the new interventionism constrain
and complicate the process of achieving the new imperialism™s goals? Just
what is it that we mean when we talk about “the rule of law”? Concretely,
how does one go about creating the rule of law? How can one tell when the
rule of law has successfully been established? At what stage do interveners
have an obligation to stick around, and at what stage do they instead have
an obligation to go home and leave local actors to determine their own
destinies?
These are dif¬cult questions, and none of them can be easily answered.
We believe, however, that answers need to be attempted nonetheless. The
new interventionism will probably be a feature of the global order for years
to come, and the stakes are too high to shrug off the hard questions as
unanswerable, or to continue to address these dilemmas in an ad hoc and
ill-considered fashion.
This book was initially conceptualized in early 2001, before the events
of September 11 shook up the global legal order. In the ¬rst months of
2001, looking back on the recent international interventions in Bosnia, Haiti,
Kosovo, Liberia, East Timor, and Sierra Leone, it seemed to us that a book
on humanitarian interventions would make a useful contribution to U.S.
and international policy debates. We initially planned to write a book that
would focus in part on establishing clear legal and pragmatic criteria for
humanitarian interventions and in part on the issue of post-intervention
efforts to rebuild the rule of law in con¬‚ict-ridden societies. When we ¬rst
began to plan this book, we took it for granted that most humanitarian
interventions would have broad, if not universal, international support and
that the intervening powers would also enjoy a reasonably high degree of
support from the local population in post-con¬‚ict societies.
The events that followed the September 11 terrorist attacks challenged
these assumptions. Although the U.S.-led invasions of Afghanistan and
Iraq had humanitarian dimensions (ousting the repressive and murderous
Taliban and Baathist regimes), both interventions were motivated mainly
by perceived national security imperatives (eliminating terrorist bases in
6 CAN MIGHT MAKE RIGHTS?


Afghanistan and preventing the acquisition of weapons of mass destruction
by Iraq).
For the most part the international community supported the intervention
in Afghanistan and accepted the invasion™s legality. In the case of Iraq, how-
ever, there was no such acquiescence; the invasion™s legal legitimacy rested
on a highly contested claim of authority. Even many traditional U.S. allies
openly criticized it, and UN Secretary-General Ko¬ Annan publicly called
it illegal. The U.S.-led invasion of Iraq found only limited and ambivalent
international support, and global skepticism of the intervention has only
been exacerbated by the subsequent failure to ¬nd weapons of mass destruc-
tion within Iraq, despite the prewar claims of the U.S. government. All this
has fed a popular perception in the greater Middle East that the U.S. inter-
vention was motivated by little more than a desire for regional domination
and control of Iraqi oil resources. Inside Iraq, public attitudes toward the
intervention vary substantially among the different segments of the popu-
lation. Although most Iraqis are happy to see Saddam Hussein gone, there
has been widespread criticism of American inability to restore basic security
in key parts of Iraq. Iraqi mistrust of the U.S.-led intervention has been fur-
ther exacerbated by popular perceptions of U.S. military heavy-handedness,
combined with the global scandal sparked by revelations about the abuse of
Iraqi prisoners at Abu Ghraib and elsewhere.
These two post“9/11 interventions posed a dilemma for our initial con-
ception of this book. After 9/11, a book focusing entirely on humanitarian
interventions no longer seemed to make much sense, because the U.S. and
international discourse had moved on to a very different place. The U.S.-led
invasions of Afghanistan and Iraq seemed like a far cry from the international
humanitarian interventions in places like Kosovo and East Timor. Nonethe-
less, as events in Afghanistan and Iraq unfolded, it became increasingly clear
to us that however different these various military interventions were on the
front end, post-con¬‚ict issues in Afghanistan and Iraq had a great deal in
common with post-con¬‚ict issues in Kosovo, East Timor, or any of the other
societies subject to international humanitarian interventions before 9/11.
Regardless of the motivations behind particular past military interven-
tions “ regardless of whether they were justi¬able or unjusti¬able, popular
or unpopular, wise or unwise “ all post-intervention societies face many
similar challenges. Although Kosovo, East Timor, and Iraq are dramatically
different societies, for instance, with divergent histories and cultures, they
all had similar needs when the main phase of the ¬ghting ended. All had
damaged infrastructures “ bombed roads, burnt-out homes and of¬ces, dev-
astated electrical and sanitation systems. All had signi¬cant populations in
desperate need of humanitarian assistance such as food, shelter, and medi-
cal care. All had public institutions that either barely functioned or entirely
lacked popular credibility and a population that had to one extent or another
7
INTRODUCTION: A NEW IMPERIALISM?


been cut off from access to critical skills or the outside world. All faced the
challenge of ensuring accountability for past human rights abuses and pre-
venting future abuses.
In a broad sense, then, there is much that all these post-intervention soci-
eties have in common. As a result, intervening powers face grave and similar
responsibilities when the bombs stop falling, regardless of the intervention™s
underlying legitimacy or motives.
Interveners may be tempted to cut and run after the initial military phase
of an intervention ends, getting out with as little loss of life and money as
possible. Yet both moral and pragmatic considerations suggest that taking a
longer-term view is better in the end.
In part, this is because even the United States, as the sole remaining super-
power, needs to maintain some degree of international legitimacy and sup-
port. Although the United States may be willing and able to accept the costs of
going it alone (or almost alone) when it comes to perceived national security
imperatives, the United States still faces signi¬cant political and diplomatic
pressure to be a good global neighbor and a responsible superpower. U.S.
domestic and international commitments to democracy and human rights
force even reluctant American politicians to promise that American power
will be used for the bene¬t of the people in post-intervention societies, as
well as for U.S. bene¬t.
In addition, military interventions that do not ultimately rebuild the rule of
law in post-con¬‚ict societies are doomed to undermine their own goals. This
is true whether the interventions were undertaken initially for humanitarian
reasons, security reasons, or a complicated mix of the two. Unless the rule
of law can be created in post-intervention societies, military interventions
will not fully eradicate the dysfunctional conditions that necessitated inter-
vention in the ¬rst place. Without the rule of law, human rights abuses and
violence will recur and continue unchecked, posing ongoing threats not only
to residents of post-con¬‚ict societies but also to global peace and security “
and perhaps necessitating another intervention a few years down the road.
Haiti is a case in point: ten years after sending in U.S. and UN troops to
restore a democratically elected leader to power, the United States recently
found itself, ironically, complicit in removing the very same leader and forced
to send in troops to ensure a peaceful transition to a new government. Had
the United States and the international community made a more sustained
investment in rebuilding the rule of law in Haiti and maintained the pressure
for reform, many abuses might have been prevented, and there might have
been no need to send in the Marines a second time around. As of this writing,
there is little reason to believe that the United States has yet learned this
lesson from the ¬rst U.S.-led intervention in Haiti: once again, U.S. troops
were quickly withdrawn, and U.S. promises of meaningful reconstruction
assistance have amounted to little.
8 CAN MIGHT MAKE RIGHTS?


East Timor provides another recent example. Just one year after the termi-
nation of the UN peacekeeping operation sent to restore order and establish
democratic institutions, the newly independent state was forced in May 2006
to declare a state of emergency and invite a new international peacekeeping
force back into the country to stop rapidly escalating local violence. The
inability of the Timorese government to maintain order on its own revealed
the fragility of its democratic institutions and political culture, and exposed
fault lines and grievances within Timorese society that will continue to fes-
ter if left unaddressed. It also highlighted the failure of the UN Transitional
Administration in East Timor (UNTAET) and other international actors to
create adequate preconditions for stability and the rule of law during the
period in which all legislative, administrative, and executive power rested
with the interveners. As in Haiti, interveners scaled back their commitment
too soon, and so were forced to return.
Unfortunately, Haiti and East Timor are hardly atypical. Time and again,
interveners have underestimated the time, effort, and resources needed for the
rule of law to take root. The temptation to undertake interventions “on the
cheap” has undercut longer-term policy goals for the United States and other
major international and regional powers. Resource and other constraints
often lead to a reluctance to intervene in the early stages of a humanitarian
or security crisis, even when all the warning signs point to the dangers of
remaining passive. Military interventions “ especially those primarily human-
itarian in nature “ often involve too little force, too late, followed by an even
more minimal commitment of resources to the post-intervention rebuilding
phase. When the “immediate crisis” is past, public attention dwindles, and
so does donor support; post-con¬‚ict, interveners often then ¬nd it dif¬cult
to provide enough troops, civilian police, reconstruction funds, and so on to
make much of a dent in post-con¬‚ict problems.
The lack of resources in turn often comes to shape post-intervention
aims, as initially ambitious reconstruction plans are scaled down to re¬‚ect
diminishing resources. This often forces unappealing compromises with local
power-brokers or “spoilers” (such as warlords in Afghanistan or the KLA
in Kosovo), who must be relied on to “make the trains run on time”
in the absence of viable alternatives structures, abandoned because they
cost too much. Needless to say, compromises with spoilers and con¬‚ict
entrepreneurs usually come back to haunt interveners a short way down
the road, and con¬‚ict may well ultimately break out again “ requiring
another cycle of interventions, lofty promises, and a rapid retreat from initial
commitments.
Thus, even if moral considerations are insuf¬cient to persuade some pol-
icymakers of the importance of building the rule of law in post-con¬‚ict set-
tings, Haiti and similar examples should suggest that what goes around,
comes around: the failure to invest adequately in interventions to build the
9
INTRODUCTION: A NEW IMPERIALISM?


rule of law in the ¬rst place has long-term negative consequences for human
rights, human security, and global security.
This book consequently proceeds from two premises. The ¬rst is that the
United States and the international community will continue to engage in
military interventions followed by post-con¬‚ict efforts to rebuild the rule of
law. The second is that all post-con¬‚ict reconstruction efforts face many sim-
ilar challenges, regardless of the rationale behind the original intervention.
In this book, we thus try to analyze the common lessons that interventions
from Bosnia to Iraq hold for future post-con¬‚ict reconstruction efforts.
Concretely, this book seeks to examine what we know and what we don™t
know about rebuilding the rule of law in the wake of military interventions.
The bad news, which will come as no surprise either to foreign policy pro-
fessionals or to careful newspaper readers, is that the track record of the
international community in general, and the United States in particular, is
not very impressive. From Bosnia and Haiti to Afghanistan and Iraq, post-
intervention efforts to build the rule of law have been haphazard, under-
resourced, and at times internally contradictory, with as many failures as
successes. This is in part because post-con¬‚ict societies tend to be inhos-
pitable environments for efforts to promote the rule of law. Post-con¬‚ict
societies are often characterized by high levels of violence and human need,
damaged physical and civic infrastructures, and sometimes little or no his-
torical rule of law traditions. 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 the international community is ¬nally beginning to
have a sense of “best practices,” an increasingly nuanced understanding of
what works and what doesn™t in post-con¬‚ict settings. The Iraq experience
has underlined the critical importance of immediately reestablishing basic
security in the wake of military interventions. This in turn requires that the
international community plan in advance for the rapid deployment of civil-
ian police in the post-con¬‚ict period “ something that was neglected in Iraq,
with costs that continue to be felt today. The Iraq experience also underlines
the fact 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. After more than a decade of well-
intentioned but ¬‚awed interventions, it has become increasingly clear that the
various aspects of post-con¬‚ict reconstruction must be addressed in a coor-
dinated way: when security, economic issues, civil society, and governmental
issues are all dealt with by separate of¬ces operating on more or less separate
tracks, confusion and problems easily multiply. Perhaps most critically of all,
we know from past failures that there is no “one size ¬ts all” template for
rebuilding the rule of law in post-con¬‚ict settings: to be successful, programs
10 CAN MIGHT MAKE RIGHTS?


to rebuild the rule of law must respect and respond to the unique cultural
characteristics and needs of each post-intervention society.
Much of this may sound obvious, and on some level it is. Nonetheless,
the international community and the U.S. foreign policy establishment have
been slow to learn these lessons, and slower still to turn abstract insight
into concrete policy changes. Much has already been written on the subject
of post-con¬‚ict reconstruction, but this book strives to ¬ll a need that still
remains unmet: to have a single volume available that pulls together the
disparate bits of knowledge we have gained in the past decade, particularly
regarding the central challenge of building the rule of law, broadly construed
to include both the operation of the law itself and the background social
and political institutions required to stabilize and promote it. Our goal in
this book is to 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, while also offering concrete
suggestions for getting it right in the future.
This book is not a how-to manual, but its focus is fundamentally prag-
matic: we are less concerned with political and legal theory than with what
seems to work on the ground, and what does not. Nonetheless, when it come
to creating “the rule of law” in post-intervention settings, we are convinced
that understanding what does and doesn™t work requires some basic histori-
cal and theoretical insights. We present those insights here in what we hope
is a straightforward and readable manner before moving on to a detailed
analysis of concrete challenges and positive practices.
Although building the rule of law may seem like a rather abstract idea,
it can be useful to think of it in the same way we think about building a
house. To build a house “ and not just any house, but a house that will be
sturdy, functional, beautiful, affordable, and appropriate to its geographic
and cultural setting “ one needs a mix of different insights and skills. First
of all, one needs some historical and theoretical background: one will want
to know at least a bit about the various ways in which people have designed
houses in the past; one will want to understand that houses can be built in
many different styles. One will want to understand what the other houses
in the area look like: if they all have peaked roofs, there may be a good
reason (to enable heavy snow to slide off the roofs easily, for instance). One
needs to understand the trade-offs between, for instance, letting in lots of
light and ensuring that the house is neither too cold in winter nor too hot
in summer. One also needs to know a bit about the physics of houses: how
much weight can be borne by walls of different materials? How big of a
furnace is necessary to heat a particular space?
At some point, such insights and questions lead to a basic conception
of the kind of house it makes sense to build in a particular place. From
this more abstract kind of knowledge, one must move through some very
practical steps. An architect must create a design for the house: a preliminary
11
INTRODUCTION: A NEW IMPERIALISM?


blueprint showing how the different rooms will ¬t together, what will go
where, and so on. Good building materials must be obtained as well: solid
wood or bricks and mortar and the like. One also needs enough money to
pay for the whole edi¬ce, and a contractor who can work well with various
subcontractors, with the architect, and with the future occupants. And, most
obviously, one must convince the future occupants that this new house is a
useful thing to have in the ¬rst place “ and that being patient during the
lengthy construction process is worth the wait.
None of these things is “more important” than the others; the building
project will fail if any one of them is ignored, and throughout the planning
and building process, continuous attention must be paid to each element.
The blueprint needs to be based on an understanding of history, geography,
good design principles, and the physics of construction. Building materials
need to be appropriate to the blueprint, and everything needs to be matched
to the available resources. One needs the right mix of people, personalities,
and skills, coordinated well enough to ensure that the mason arrives before
the plumber and that the house has a roof before the ¬‚ooring is installed.
Adjustments may have to be made on the ¬‚y as unexpected problems and
opportunities arise, and all the players must somehow be kept on board
throughout the inevitable complications and delays.
This metaphor is elaborate, but apt. When it comes to creating the
rule of law, one needs a basic theoretical and historical background, a
blueprint, building blocks, money, appropriately skilled people, and a
cultural commitment to the underlying project. In efforts to build the rule
of law in post-intervention societies, the minimally necessary historical and
theoretical background consists of a basic understanding of the legal and
historical context in which military interventions occur and an awareness
that the rule of law is a complex and culturally situated idea, consisting both
of institutions and of a particular set of normative cultural commitments.
The “blueprint” for building the rule of law in post-intervention societies is
the overarching structural and constitutional arrangement: electoral rules,
power-sharing arrangements between political factions or ethnic groups, the
division of power between different branches and levels of government, and
so on. The “building blocks” for the rule of law might be said to be courts,
police, prisons, legislatures, schools, the press, bar associations, and the like.
Of course, unlike the bricks and timber that go into physical structures, the
institutional building blocks on which the rule of law depends are themselves
made up of human beings, with their own hopes, fears, and attitudes, and
this makes creating the institutional aspects of the rule of law as complex as
any other venture that relies on mobilizing multiple individuals in a common
enterprise.
When it comes to the rule of law, there is no neat way to separate out
the creation of new or reformed institutions from the creation of new cul-
tural commitments. For that reason, we discuss the ways in which past
12 CAN MIGHT MAKE RIGHTS?


interventions have been justi¬ed and perceived by interveners, bystanders,
and “intervenees,” for people™s beliefs about the legitimacy of a military inter-
vention have a strong effect on their attitudes toward post-con¬‚ict projects.
When we consider efforts to promote the rule of law, this is particularly
true. If an intervention™s legality and legitimacy is widely contested, as was
the case with the U.S.-led intervention in Iraq, this can complicate postwar
efforts to build the rule of law, as we will elaborate. Although legality and
legitimacy are not always one and the same “ and success can create its own
post hoc legitimacy “ the stronger the legal basis for an intervention, the
greater the prospects that an intervener will enjoy widespread international
support for its post-con¬‚ict rebuilding efforts.
The problem of resources is more straightforward. Most rule of law efforts
are funded by foreign donors, who are often unable or unwilling to make
their ¬nancial assistance quite match their rhetorical commitment to the
rule of law. Problems of coordination are also readily intelligible: to success-
fully create the rule of law, governments, NGOs, civil society institutions,
politicians, and ordinary people must all work together cooperatively and
ef¬ciently. And ¬nally, as noted above, there is the role of culture. Just as
19th-century Egyptian governmental efforts to “better” the lot of nomadic
tribespeople by constructing houses for them failed when it turned out that
the nomads did not particularly value staying in one place and living in
houses, so too efforts to build the rule of law in post-intervention societies
will inevitably fail if ordinary people lack an underlying cultural commitment
to the values associated with the rule of law.
Building the rule of law is a holistic process, and it is almost inevitably
marked by internal contradictions. Short-term interests may genuinely con-
¬‚ict with long-term interests (for instance, collaboration with local warlords
or militias may be useful in establishing security in the short term but may
dangerously empower “spoilers” in the long term). Fostering “local owner-
ship” and respecting local cultural norms may con¬‚ict with ef¬ciency inter-
ests and international standards. Satisfying minority political participation
interests may con¬‚ict with satisfying majorities. Promoting the rule of law is
not politically neutral, although interveners often like to imagine that it is.
In practice, the decisions interveners make necessarily empower some local
actors at the expense of others. This incites opposition (sometimes violent),
which can in turn force interveners to respond with coercion, which then
generates more opposition.
Building the rule of law requires a constant balancing act. As a result,
movement toward the rule of law often is not linear, but back and forth. Inter-
veners must constantly make choices among problematic alternatives. But
interveners, precisely because they are interveners (and so don™t fully under-
stand local culture, interests, or institutions), are often not well positioned
to make such choices and may not fully understand the likely consequences.
13
INTRODUCTION: A NEW IMPERIALISM?


This does not mean that building the rule of law is a fool™s errand. It does
mean that is far more dif¬cult than is generally understood. The evidence
suggests, however, that interveners can achieve moderate success if they take
these complexities into account and plan accordingly. The goal of this book
is to help interested actors understand the dif¬culties of post-con¬‚ict rule
of law promotion and the conditions, time, energy, resources, and skills
required for success. We argue that a constructive approach to building the
rule of law must be ends-based and strategic, adaptive and dynamic, and
systemic. We call this the synergistic approach to post-intervention rule of
law, and we think it offers a helpful framework for planning, implementing,
and evaluating rule of law-related projects.
The structure of this book is straightforward and ¬‚ows from the architec-
tural metaphor elaborated above. Following this ¬rst introductory chapter,
we have two chapters containing background historical, legal, and theoreti-
cal discussions.
Chapter 2 discusses the international legal framework governing the use of
force and its impact on understandings of when military intervention is justi-
¬ed. We examine how the framework set forth in the United Nations Charter
has functioned and evolved in practice from the Cold War to the post“9/11
era, noting in particular the growing in¬‚uence of human rights principles
in shaping international understandings of legitimate military intervention.
This legal and historical analysis illuminates how international perceptions
of an intervention™s legitimacy can signi¬cantly in¬‚uence the willingness of
states to contribute to post-con¬‚ict reconstruction. The chapter also exam-
ines the complex question of local perceptions of an intervention™s legitimacy
and the extent to which intervener compliance with international law is one,
among many, contributing factors. Given that promoting the rule of law after
military intervention is, in no small part, an effort to convince local actors
that law matters, Chapter 2 argues that how interveners conduct themselves “
and their ability to maximize their legitimacy among the local population “
invariably will in¬‚uence the success of these efforts.
Building on this, Chapter 3 discusses the elusive idea of the “rule of law.”
Most scholars and policymakers agree that the rule of law is what protects
people against anarchy and arbitrary exercises of power, but there is less
agreement about whether the rule of law consists primarily in certain formal
structures and processes (elections, constitutions, courts, fair trial guaran-
tees, etc.) or whether the rule of law is a matter mainly of certain substantive
commitments (to human rights, for example). Chapter 3 brie¬‚y explores
this debate and ultimately argues for a very pragmatic conception of the
rule of law. A pragmatic conception of the rule of law acknowledges the
importance both of institutions and substantive commitments, and relies on
international human rights norms as the touchstone for evaluating whether
particular practices comport with the rule of law. In Chapter 3, we discuss
14 CAN MIGHT MAKE RIGHTS?


what it means to conceptualize rule of law programs synergistically. The
synergistic approach has three main components: (1) we emphasize that rule
of law programs must be ends based and strategic rather than formalistic
or rigidly institutionalist; (2) we argue that rule of law programs must be
adaptive and dynamic. Because no two societies are alike, programs must be
built around local needs and issues and must be ¬‚exible enough to change as
conditions change; and (3) we also emphasize that building the rule of law
requires looking at systemic issues. Fair, independent, and ef¬cient courts
can contribute to the rule of law only if they are part of a system in which
all other components also function, for instance. Thus, narrow and uncoor-
dinated rule of law programs will have little positive effect.
In Chapter 4, we turn from these background questions to more prag-
matic considerations. Chapter 4 focuses on blueprints for governance in
post-intervention settings: the macro-level political bargains that de¬ne what
a post-con¬‚ict society should look like. Will it be a unitary or a federal state?
How will power be shared between various groups? What structures will
best balance the interests of majorities with the rights of minorities? The
chapter argues that although there is no “one size ¬ts all” blueprint pos-
sible, nonetheless there are common features and common problems that
recur across particular blueprint types. The chapter explains why blueprints
requiring bargains over state identity are more dif¬cult to implement than
blueprints settling con¬‚icts over power and resources, and offers suggestions
for blueprint design and implementation in future cases.
In Chapters 5 to 7, we turn to the issue of building blocks. Chapter 5
focuses in particular on the critical challenge of ensuring security, broadly
de¬ned: meeting basic human needs, getting well-trained civilian police out
quickly in the wake of con¬‚icts, and creating the stability that will enable the
subsequent development of credible courts and other institutions. We argue
that reestablishing a secure environment is a necessary ¬rst step to rebuild-
ing the rule of law and that timing is everything: when major ¬ghting ends,
there is a critical window of opportunity in which intervening forces can
demonstrate that a new sheriff is in town. The failure to move aggressively
to establish security early on emboldens spoilers, weakens public con¬dence,
and jeopardizes reconstruction efforts, in a vicious circle. We note that mil-
itary forces alone possess the capacity to restore security in the immediate
wake of an intervention, but military forces lack the capacity for genuine
policing, making it crucial to bring in civilian police and rebuild indigenous
policing capacity.
Chapter 6 focuses on those aspects of rule of law promotion that
may be most familiar to readers: the justice system, including courts, law
enforcement, and prisons. But Chapter 6 emphasizes that too many existing
rule of law programs view one or more aspects of justice systems in isolation.
Instead, they need to be understood as interrelated parts of an exceptionally
complex whole. We urge a synergistic approach to justice system reform that
15
INTRODUCTION: A NEW IMPERIALISM?


focuses on the ends that the rule of law should serve, that adaptively and
dynamically builds upon existing cultural foundations, and that works for
balanced reform in justice institutions, viewed as a system. Courts cannot
contribute to the rule of law without police and prisons that also function
well, and institutions alone cannot alter the assumptions, habits, and cul-
tural commitments of the actors within them. Moreover, courts, prisons,
and police are embedded in the larger society, and creating effective justice
systems also requires a focus on access to justice, civil society, education,
and informal dispute resolution mechanisms, all of which can sustain (or
undermine) the justice system itself.
Chapter 7 looks at the unique challenge of seeking accountability for
past atrocities and the impact of these efforts on building the rule of law
prospectively. Severe atrocities marked most of the con¬‚icts we examine
in this book, and interveners and local leaders alike have faced dif¬cult
decisions regarding the importance of criminal accountability, reparations,
reconciliation, and other goals, and regarding institutional mechanisms to
advance these aims. This chapter explores how international and national
priorities can sometimes con¬‚ict, and how choices about accountability
mechanisms “ international tribunals, mixed national/international courts,
domestic courts, truth and reconciliation commissions, among others “ can
in¬‚uence efforts to rebuild the rule of law in post-con¬‚ict societies in a num-
ber of ways, including through demonstration effects and domestic capacity-
building. We argue that pursuing accountability for the past should be under-
stood as part of a larger effort to strengthen the rule of law prospectively
and that accountability processes should be designed with this aim in mind.
Chapter 8 returns to the thorny question of how a substantive commit-
ment to the values underlying the rule of law can be created. In the long
term, restructured institutions and reformed legal codes will be effective
only if they are buttressed by a widespread cultural commitment to the rule
of law on the part of elites and ordinary people alike. This chapter looks
more closely at the issue of how rule of law cultures can be created in soci-
eties in which law and governance structures have been badly discredited. It
notes that interveners can unintentionally undermine the rule of law through
poorly planned programs, and outlines several ways interveners can ensure
that they at least “do no harm.” It then focuses on several issues of partic-
ular importance to building rule of law cultures: the role of NGOs and civil
society; the role of legal education, including clinics; and programs designed
to increase awareness of rights and governance issues, such as community
organizing programs, access to justice initiatives, and programs that make
use of paralegals and other nonlegally trained advocates and mediators. It
emphasizes the importance, in some societies, of traditional informal dispute
settlement procedures, especially in poorer and rural communities. Finally,
Chapter 8 outlines key issues in creating rule of law cultures: getting to
the grassroots; creating a thriving civil society; shaping the next generation;
16 CAN MIGHT MAKE RIGHTS?


giving people a stake in rule of law reforms; involving marginalized groups
such as women, youth, and minorities; and a willingness to use creative
methods and synergies between, for instance, rule of law and antipoverty
programs.
Chapter 9 takes on the issue of improving the planning and delivery of
international rule of law assistance. It is easy to identify good practices in the
abstract, but promoting rule of law in post-con¬‚ict societies occurs in a par-
ticular institutional context. In the real world, states, international organi-
zations, and NGOs compete, resources are limited, and political constraints
are stark and often shifting. This chapter looks at the way these factors shape
the capacity of various actors to build the rule of law in the aftermath of
military intervention. Among other things, the chapter considers ways to
achieve unity of effort among international actors, possible improvements
to existing planning mechanisms, means to facilitate donor coordination,
and the vital importance of involving local actors and building indigenous
capacity in post-con¬‚ict reconstruction efforts. Finally, Chapter 10 offers
brief concluding observations.
Because of our conviction that building the rule of law requires an inte-
grated approach, we have organized this book thematically, rather than
around speci¬c country case studies. Nonetheless, throughout the book we
discuss speci¬c examples of failures and successes from recent interventions,
to ensure that the discussion remains grounded at all times in the practical.
Much of the important writing on rule of law promotion that has been
done in the past has focused on reform efforts in transitional and developing
societies, rather than on rule of law in post-intervention societies. Although
this book occasionally draws on that literature and mentions examples from
such developing and transitional societies, the cases and examples we offer
are drawn mainly from societies that have been the subject of major post“
Cold War military interventions: Somalia, Haiti, Bosnia, Kosovo, East Timor,
Sierra Leone, Liberia, Afghanistan, and Iraq. Such interventions differ in
some notable ways from the many ongoing projects to strengthen the rule of
law in developing or transitioning societies. On the one hand, the emergency
circumstances that trigger intervention, the frequent devastation of institu-
tions in post-con¬‚ict settings, and the presence of armed interveners all pose
special and distinctive dilemmas for building the rule of law. On the other
hand, these very factors “ and the dramatic infusion of resources that often
characterizes post-intervention societies, at least initially “ also offer unique
opportunities; governance structures and institutions can often be radically
remade in ways that would otherwise be impossible.
Of course, just as post-con¬‚ict societies differ from transitional and devel-
oping societies, they also differ substantially from one another. Throughout
this book, we stress the critical importance of understanding the unique his-
torical and cultural terrain for building the rule of law in each particular
17
INTRODUCTION: A NEW IMPERIALISM?


country, even as we also aim to provide a thematic discussion of many of
the recurring challenges and common elements involved in strengthening the
rule of law after interventions. Indeed, although our focus is on intervention
and its aftermath, we also hope that the insights we offer in this book may
be of relevance to those working to build the rule of law in a broader set of
circumstances as well.
All of the authors teach in U.S. law schools, but we approach the issue
of post-intervention reconstruction not solely as academics but also as prac-
titioners. We have all served in U.S. government foreign policy positions as
well as carving out careers in academia, and some of us have served in the
private and NGO sectors as well. Between the three of us, we have expe-
rience on the ground in Haiti, Bosnia, Kosovo, East Timor, Liberia, Sierra
Leone, and Iraq. In this book we draw on our personal experiences as well
as on the experience and insights of many others, because we are convinced
that the joint store of knowledge that we and others have built up over the
years is worth sharing and discussing.
This book owes a great deal to the hundreds of people we have interviewed
over the past few years. Our interviews have taken us from Washington, DC,
and New York to Geneva, Brussels, Amsterdam, The Hague, Nigeria, Sierra
Leone, Kosovo, Bosnia, Iraq, and East Timor; interviewees have ranged from
high-level local, UN, EU, NATO, and U.S. government of¬cials to experts
from NGOs and think tanks to soldiers, activists, judges, lawyers, journalists,
and others working on the ground in various post-con¬‚ict societies. None
of this would have been possible without generous ¬nancial support from
the U.S. Institute of Peace and the Carnegie Corporation, and we remain
grateful to both organizations.
This book represents our effort to contribute to the ongoing conversation
about how to ensure that military interventions lead to societies that are gen-
uinely better off after the interventions than they were before. It is intended
as a resource for foreign policy, military, and humanitarian professionals,
for students, for journalists, and for those many “nonexperts” who simply
want to understand the world around them, and the reasons for success and
failure in the challenging task of rebuilding the rule of law after military
interventions.
CHAPTER TWO




Interventions and International Law:
Legality and Legitimacy




Armed interventions levy enormous burdens, not least upon those with the
capacity and will to mount them. When U.S. Secretary of State Colin Powell,
referring to Iraq, opined to the president “ “If we break it, sir, we will own
it” “ he was voicing a practical reality: interveners face far greater pressure
today than in earlier eras to help stabilize and rebuild war-torn countries
after major combat ends.
As a consequence, decisions to commit forces and resources to foreign
interventions are among the most dif¬cult ones that national leaderships
face, especially in democratic countries. Governments must be convinced
that contributing troops and other personnel serves their national interests
and values, that the intervention has a reasonable prospect of success, that
lesser strategies “ for example, containment “ cannot deliver the desired
results, and in a larger sense that the bene¬ts of the action outweigh its
costs and risks. Recent experience in Iraq and elsewhere has also shown that
states are far more likely to participate in an intervention “ and contribute to
post-con¬‚ict reconstruction “ if they view the underlying intervention itself
as legitimate.
The perceived legitimacy of an intervention will turn on many factors,
including how urgent and compelling the circumstances are in the target
state. Are terrorist groups using the territory to train operatives and launch
attacks on other countries, with the support of the local regime? Are state
actors or nonstate groups perpetrating horri¬c atrocities, in violation of
fundamental norms of international law? Are threats to national and regional
security increasing? Have diplomatic efforts to address the situation proved
unavailing?
Without question, the presence of clear legal authority to intervene will
also be highly signi¬cant in convincing other states that military action is
legitimate. That sense of legitimacy can, in turn, substantially in¬‚uence the
willingness of governments to support or contribute to the intervention.
Legality by itself is no guarantee of support, to be sure. But the absence
18
19
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


of agreed legal authority can undermine the chances of building or sustain-
ing a committed coalition. The fact that the U.S. military intervention in
Afghanistan in 2001 was widely viewed as lawful self-defense, for exam-
ple, made it easier for other states to contribute forces and resources than
in the highly contested 2003 Iraq War. In general, the further interventions
are from the two clear agreed legal bases for using force under the United
Nations (UN) Charter “ in self-defense or with Security Council authoriza-
tion “ the greater the risk that other governments will dispute their legitimacy
and be reluctant to support them.
Legality and legitimacy, of course, are not precisely the same thing. Some
interventions “ such NATO™s use of force in Kosovo or the intervention by
a coalition of Nigerian-led forces in Liberia “ were widely viewed as legit-
imate even though they were neither authorized by the Security Council in
advance nor undertaken in self-defense. In the case of Kosovo, for instance,
a substantial majority of the countries on the Security Council regarded the
intervention as justi¬ed even though it was not possible, given the positions
of Russia and China, to obtain the Council™s authorization. Furthermore, in
cases where an intervention succeeds in suppressing widely recognized dan-
gers or abuses, the very fact of its success will tend to overshadow the ques-
tion of its technical legality. To a degree, success creates its own legitimacy.
The problem is that few interventions are ever so straightforward, and
the prospects of keeping critical states engaged in the midst of the inevitable
setbacks are greater if they are convinced of the legality and legitimacy of
the enterprise at the outset. Legality and legitimacy at the front end can rein-
force the willingness of states to stay the course when the going gets tough.
Given that interventions increasingly involve long-term efforts at politi-
cal, social, and economic transformation, their legitimacy will constantly
be reassessed by relevant actors as circumstances evolve on the ground; a
strong consensus about the intervention™s legitimacy from the beginning can
increase the prospects for ongoing cooperation from both local and interna-
tional actors. Furthermore, in the face of inevitable skepticism regarding the
motives of those most inclined to prosecute an intervention, a broad-based
multilateral coalition can be critical in conveying the message that the action
re¬‚ects more than just the self-interest of one or a few nations, however
powerful.
The concrete objectives that interveners pursue will also profoundly shape
perceptions of the intervention™s legitimacy. Here again international legal
norms are relevant. Whatever factors trigger states to intervene in the ¬rst
place, they increasingly face international pressure to help build governance
structures and institutions that advance self-determination and protect the
basic international human rights of the local population, while respecting
the unique culture of the people whose future is directly at stake. Gone are
the days when countries could intervene to seek territory and resources for
20 CAN MIGHT MAKE RIGHTS?


themselves without regard for the aspirations and needs of the local popula-
tion. Moreover, the ability of intervening states to act in a manner consistent
with fundamental principles of international law “ including human rights
and international humanitarian law “ will in¬‚uence not only international
support for but also local acceptance of the intervention™s legitimacy.
Indeed, the presence or absence of perceived legitimacy is particularly
crucial at the local level. The interveners, after all, need the local popula-
tion not merely to participate in the hard work of rebuilding but to assume
responsibility for their own destinies over the longer term. As we argue
below, however, local perceptions in post-con¬‚ict situations can often be
highly volatile “ driven by bouts of euphoria, disappointment, relief, and
resentment “ and interveners cannot presume local goodwill and support for
their actions, however well intentioned.1
Interveners who aim to strengthen the rule of law in con¬‚ict-ridden soci-
eties ignore local and international perceptions of legitimacy at their peril.
If interveners want to be successful in building the rule of law after inter-
vention, they will need to take seriously the international legal norms that,
as noted earlier, will shape perceptions about whether the intervention is
legitimate and worth supporting. That sense of legitimacy may be critical in
building and sustaining multilateral coalitions that can help to ameliorate
domestic skepticism of outside interveners in the dif¬cult, long-term process
of strengthening the rule of law after the ¬ghting stops.
Our present way of understanding the relevant international legal norms “
concerning the use of force, the justi¬cations for military interventions, and
the constraints upon their legitimate objectives “ emerged from and evolved
out of the post-World War II institutional and legal framework of the United
Nations and its Charter. As we shall see, international law concerning inter-
vention is by no means static. Strategic realities have continually affected
both how states have interpreted the basic rules of the UN Charter and the
extent to which human rights principles have in¬‚uenced the fact or char-
acter of interventions. Thus, we will examine how the international legal
framework has functioned and evolved in practice from the Cold War era
to the immediate post“Cold War years to the exceedingly dif¬cult period
since 9/11. With a special emphasis on the years since the end of the Cold
War, we discuss the growing in¬‚uence of human rights principles in shap-
ing international understandings of legitimate military intervention. We also
examine the complex question of local perceptions of an intervention™s legit-
imacy and the extent to which intervener compliance with international law
is one, among many, contributing factors. Because promoting the rule of law
after military intervention is, in part, an effort to convince local actors that

1 For a useful discussion of one particular case, see James A. Schear, Bosnia™s Post-Dayton
Traumas, 104 Foreign Policy 87 (1996).
21
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


law matters, the interveners™ own conduct “ and their ability to maximize
their legitimacy among the local population “ inescapably will in¬‚uence the
outcome of the intervention.
The legal and historical analysis presented in this chapter provides the
context for the rest of the book in two important respects. Quite straight-
forwardly, the legal and historical materials discussed here provide the sub-
stantive framework for what follows. The issues and problems analyzed in
this chapter recur, in one way or another, in every subsequent chapter. Just as
importantly, however, what we hope to illustrate here is the complex interac-
tion of international law with the social and political realities on the ground,
both locally and internationally. For it is this complex and ever changing
interaction that must be understood and taken into account if social and
political stability “ and with it, the rule of law “ are to be achieved in the
wake of military intervention.


I. THE INTERNATIONAL LEGAL FRAMEWORK: THE UN CHARTER
AND THE USE OF FORCE

The United Nations Charter has been the centerpiece of the international
legal framework governing the use of force since 1945. The Charter repre-
sents an effort to construct effective barriers against aggression and to sub-
ject intervention to agreed upon international rules “ an effort that stands
out against the larger swath of human history during which states were
largely free to resort to war as a matter of state policy.2 The Charter™s
founders aimed, above all, “to save succeeding generations from the scourge

2 The concept of war as a sovereign right of states largely prevailed from 1648, when the
system of secular nation-states developed in Europe following the Peace of Westphalia, until
1914. The devastation of World War I led states to establish the League of Nations, which
aimed to limit the resort to force in international relations. The League™s Covenant, which
took effect in 1920, placed some restrictions on force but did not categorically prohibit
resort to war. The members of the League agreed, for example, to settle their disputes by
peaceful means through arbitration, judicial settlement, or action by the League™s Council,
and they agreed not to resort to war until three months after a decision had been reached “
a cooling-off period designed to slow any rush to war. Members also agreed not to go to
war if the other state complied with the decision. If a member resorted to war in violation of
the Covenant, the League of Nations envisioned that member states would take collective
action, such as economic and diplomatic sanctions; but the League Council only had the
power to recommend that its members contribute military forces. In short, the League lacked
an effective enforcement mechanism as subsequent events would so clearly show. The 1928
Kellogg“Briand Pact was more categorical than the League Covenant: it condemned resort
to war for the solution of international disputes or as an instrument of national policy,
and the parties pledged to resolve their disputes peacefully. But the Kellogg“Briand Pact
failed to clearly address the question of the use of force short of war, and it established
no enforcement mechanism. The clear limitations of these instruments, and the horrors of
World War II, spurred renewed efforts to place international legal limits on the use of force.
22 CAN MIGHT MAKE RIGHTS?


of war” and “to ensure, by the acceptance of principles and the institution of
methods, that armed force shall not be used, save in the common interest.”3
Two hardheaded and realistic leaders, President Franklin Delano Roosevelt
and Prime Minister Winston Churchill, led the effort to create an organiza-
tion that could act effectively and collectively against aggression and other
threats to the peace, within a framework that placed constraints on the uni-
lateral use of force.
The Charter™s fundamental principles include the central nonintervention
norm set forth in Article 2(4), which af¬rms that states “shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.” But the Charter™s
architects understood that rules limiting the use of force were insuf¬cient
without a robust enforcement mechanism that could draw on the military
and economic resources of the great powers, whose forces together had been
necessary to defeat Hitler.
Thus, the Charter gave a body of states “ the United Nations Security
Council “ primary responsibility for maintaining international peace and
security, as well as far-reaching enforcement authority for that purpose.
Chapter VII of the Charter explicitly empowers the Security Council to
respond, with military force if necessary, to threats to the peace, breaches
of the peace, or acts of aggression, in order to restore and maintain inter-
national peace and security. The Charter also clearly recognizes the right of
states to take immediate action in self-defense and af¬rms, in Article 51, that
“Nothing in the present Charter shall impair the inherent right of individ-
ual or collective self-defense if an armed attack occurs against a Member of
the United Nations. . . .” The prospect of reliance on regional self-defense
alliances was clearly encompassed by this af¬rmation of the right of “col-
lective” as well as individual self-defense. In addition, in Chapter VIII, the
UN Charter encourages regional arrangements “ consistent with the United
Nations™ purposes and principles “ to resolve local disputes peacefully or, if
necessary, to take “enforcement action” with the Security Council™s autho-
rization. The Charter, in short, provides for the lawful use of force in two
clear situations: when authorized by the Security Council under its Chapter
VII authority or in exercise of the right of self-defense under Article 51.
The Charter was designed to be both stabilizing and empowering. The
very existence of the Charter “ and the core prohibition on aggression
re¬‚ected in Article 2(4) “ forced states to explain and justify their deci-
sions to use force and provided at least some limitation on the purposes for
which force could be used.4 At the same time, the Charter empowered the

3 Preamble to United Nations Charter.
4 Professor Louis Henkin put it this way: “The occasions and the causes of war remain. What
has become obsolete is the notion that nations are as free to indulge it as ever, and the death
23
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


Security Council to use force collectively in the common interest to protect
international peace and security.
The Charter, though ambitious, was a creature of its time in many respects.
Interstate aggression was the primary threat on the minds of the Charter™s
framers. The big powers of the day were expected to contribute signi¬cant
forces to protect the peace, and they received the critical veto power on
the Security Council “ a privilege that generated controversy from the start.
Thus, no effective enforcement action could be taken against the Council™s
¬ve permanent members “ the United States, Britain, China, Russia, and
France “ or their interests.5 The Charter™s strong nonintervention principle,
moreover, was clearly weighted in favor of the status quo. Change in the state
order was to be achieved peacefully, not through the use of force. The Charter
also expressly af¬rmed that the United Nations was “based on the principle
of the sovereign equality” of states “ notwithstanding their vastly differing
governmental structures and internal conditions “ and the Charter made
clear that the UN™s authority to intervene in “matters which are essentially
within the domestic jurisdiction of any state” had limits.6
Yet the UN Charter was also designed to be ¬‚exible and capable of adap-
ting to new circumstances and threats. The Security Council™s power to
respond to “threats to the peace,” for instance, is far-reaching: the Council
can act preemptively to prevent emerging “threats to the peace” and is not
limited to responding only to “breaches of the peace” or “acts of aggres-
sion.” Moreover, the Charter does not limit or de¬ne these terms, leaving to
the Security Council the ¬‚exibility to make these determinations in concrete
circumstances.7 Also, the Security Council™s authority to take action is broad
and includes a wide spectrum of potential responses, from diplomatic mea-
sures to economic sanctions to the use of force. The only limits on the Council

of that notion is accepted in the Charter.” Louis Henkin, The Reports of the Death of Article
2(4) Are Greatly Exaggerated, 65 Am. J. Int™l. l. 544, 545 (1971).
5 Since the Charter was adopted, the Chinese seat, originally held by the Nationalist govern-
ment of Taiwan, was assumed by the People™s Republic of China, and Russia assumed the
seat originally held by the Soviet Union upon its dissolution.
6 UN Charter, Art. 2(1), Art. 2(7).
7 The Charter™s founders left it to the Security Council to make these judgments in light
of the circumstances. Ruth Russell, A History of the United Nations Charter (1958),
at 464“465, 669“672. In 1945 Britain™s Lord Halifax stressed the importance of giving
the United Nations and its members the ¬‚exibility to deal with new situations that could
not be foreseen. As he explained, “instead of trying to govern the actions of the mem-
bers and the organs of the United Nations by precise and intricate codes of procedure, we
have preferred to lay down purposes and principles under which they are to act. And by
that means, we hope to insure that they act in conformity with the express desires of the
nations assembled here, while, at the same time, we give them freedom to accommodate
their actions to circumstances which today no man can foresee. We all want our Organiza-
tion to have life. . . . We want it to be free to deal with all the situations that may arise in
international relations. We do not want to lay down rules which may, in the future, be the
signpost for the guilty and a trap for the innocent.” UNCIO Selected Documents (1945),
at 537.
24 CAN MIGHT MAKE RIGHTS?


are that it act consistently with the “purposes and principles” of the United
Nations.8
Promoting respect for human rights is one of these fundamental pur-
poses,9 and the UN™s members expressly agreed in the Charter to advance
this goal.10 A number of states argued, moreover, that extreme violations
of human rights could create a threat to the peace warranting a Security
Council response.11 But the Charter™s drafters did not create a “humani-
tarian intervention” exception to the UN Charter™s limits on the unilateral
use of force.12 Indeed, the Charter™s principles of nonintervention and state
sovereignty were at odds with any claimed unilateral right to use force in
response to another state™s human rights violations.
The UN™s member states did commit themselves, however, “to take joint
and separate action” in cooperation with the United Nations to promote
“universal respect for, and observance of, human rights.”13 Over time, the
UN Charter™s human rights provisions were supplemented by a growing body
of international human rights instruments. In 1948, the UN General Assem-
bly adopted the Universal Declaration of Human Rights, af¬rming core civil
and political rights as well as economic and social rights, and expressly
af¬rming the equal rights of men and women.14 The Universal Declaration
8 UN Charter, Art. 24(2).
9 Speci¬cally, Article 1(3) of the UN Charter af¬rms that it is a purpose of the United Nations
“To achieve international cooperation in . . . promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language, or
religion. . . .”
10 Article 55 provides that the United Nations shall promote “universal respect for, and obser-
vance of, human rights,” and all member states pledge, in Article 56, to “take joint and
separate action” to achieve that purpose.
11 The discussions regarding Article 2(7) at San Francisco in 1945 reveal considerable aware-
ness that internal conditions within a country, including grievous violations of human rights,
could potentially pose a threat to peace and security and thus give rise to enforcement action
by the United Nations. Sensitivity on this point is not surprising given the recent horrors
of the Holocaust. The Report of the Subcommittee on the UN™s purposes and principles
recognized that if human rights and fundamental freedoms “were grievously outraged so as
to create conditions which threaten peace or to obstruct the application of provisions of the
Charter, then they cease to be the sole concern of each state.” Doc. 723, I/1/A/19, Report
of Rapporteur, Subcommittee I/1/A to Committee I/1 (Preamble, Purposes and Principles),
Documents of the United Nations Conference on International Organization, San Francisco
1945, Vol. 6, June 1, 1945, at 705.
12 Sean Murphy, Humanitarian Intervention (1996), at 70“75. In previous eras, some states
had claimed a right of humanitarian intervention “ that is, a right to use force in response
to severe human rights abuses within another state, without the consent of its government.
But this doctrine was controversial and fraught with potential for abuse. Intervening states
frequently had other goals and motivations in using force, and other states generally rejected
claims of humanitarian intervention.
13 UN Charter, Arts. 55, 56.
14 Forty-eight states voted in favor, no states opposed, and eight countries, including the Soviet
Union, abstained. A landmark development, the Universal Declaration af¬rms core civil and
political rights, such as a right to liberty; freedom of thought, expression, and association;
25
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


was followed by a series of major multilateral human rights treaties drafted
under UN sponsorship and now rati¬ed by the vast majority of states. These
treaties include the Genocide Convention of 1948; the International Con-
vention on the Elimination of All Forms of Racial Discrimination, adopted
by the General Assembly in 1965; followed in 1966 by the International
Covenant on Civil and Political Rights, and the International Covenant on
Economic, Social and Cultural Rights; the Convention on the Elimination of
All Forms of Discrimination Against Women adopted in 1979, followed in
1984 by the Convention Against Torture, in 1989 by the Convention on the
Rights of the Child, and in 2000 by an important protocol restricting the use
of child soldiers.15 In the decades following the Universal Declaration, paral-
lel human rights developments also occurred at the regional level.16 Together
with customary international law principles, including fundamental norms
binding on all states, these multilateral human rights treaties provide the
legal framework for the protection of international human rights.17
Another critical legal development during the 20th century that bears
directly on the use of force is the international law of armed con¬‚ict. This
body of law “ which governs how force is used and the treatment of both
combatants and noncombatants “ has developed substantially since the
Hague Regulations at the turn of the 20th century; it now includes the four
Geneva Conventions of 1949, the 1977 protocols, and statutes adopted in
the 1990s establishing international tribunals to prosecute perpetrators of


prohibition against slavery; freedom of religion; right to a fair and public trial; presumption
of innocence; prohibition against torture or cruel and inhuman treatment or punishment;
protection against arbitrary interference with privacy, family, home, or correspondence; and
prohibition against arbitrary arrest. Thanks to the efforts of Eleanor Roosevelt, it also goes
further and provides for the equal rights of men and women. The Universal Declaration
also enumerates certain economic and social rights, such as the right to work, to equal pay
for equal work, to join trade unions, and to a decent standard of living, including adequate
health care, food, clothing, and housing, the right to education, and the right to participate
fully in the cultural life of the community.
15 These treaties are available on the Web site of the Of¬ce of the UN High Commissioner for
Human Rights, at http://www.ohchr.org/.
16 The European Convention for the Protection of Human Rights and Fundamental Freedoms
was signed in 1950 and took effect three years later. In Latin America, the Charter of
the Organization of American States (OAS), which took effect in 1951, provided for the
establishment of an Inter-American Commission on Human Rights, which was subsequently
formed in 1960. The American Convention on Human Rights entered into force in 1978.
The Organization of African Unity adopted the African Charter on Human and Peoples™
Rights in 1981, which entered into force ¬ve years later.
17 Multilateral treaties, at both the international and regional levels, are one of the main sources
of human rights law. In addition there is customary international law as well as decisions
and actions by UN organs and other international and regional bodies, including judicial
tribunals. Substantively, international human rights standards include jus cogens norms “
that is, rules binding on all states “ such as the prohibition against slavery, against genocide,
and against torture.
26 CAN MIGHT MAKE RIGHTS?


war crimes, crimes against humanity, and genocide.18 As the International
Court of Justice “ itself a creation of the United Nations “ has underscored,
the “cardinal principles” of the international law of armed con¬‚ict are the
principle of distinction between combatants and civilians “ that civilians
should not be made the object of attack “ and the principle that combatants
should not be caused unnecessary suffering.19 States have a powerful inter-
est in reciprocal treatment by other states, which can serve as an important
incentive to comply with these international legal rules. But violations are
all too frequent, and holding perpetrators of atrocities accountable remains
an enormous challenge, as we discuss in Chapter 7.
When viewed in a longer-term perspective, the developments in inter-
national law achieved by the end of the 20th century are quite remarkable.
Despite setbacks and continuing problems of noncompliance, states had nev-
ertheless agreed to fundamental international legal rules governing the use
of force and protecting human rights. These fundamental international legal
developments of the 20th century together represent a growing, if imperfect,
“rule of law” internationally that, at a minimum, sets basic parameters on
how states should behave toward each other and internally.
The challenge, of course, is how to enforce these basic rules, and this
has long been the most dif¬cult issue in international law. States commit-
ting egregious human rights violations generally reject criticism of their
behavior and stubbornly defend their own sovereignty.20 States and nonstate
18 See Adam Roberts & Richard Guelff, Documents on the Laws of War (3rd ed. 2000).
These statutes include the 1998 Rome Statute of the International Criminal Court. Id. at
667.
19 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion of 8 July 1996, para. 78. As the Court wrote: “The cardinal principles contained
in the texts constituting the fabric of humanitarian law are the following. The ¬rst is aimed
at the protection of the civilian population and civilian objects and establishes the distinc-
tion between combatants and non-combatants; States must never make civilians the object
of attack and must consequently never use weapons that are incapable of distinguishing
between civilian and military targets. According to the second principle, it is prohibited to
cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons caus-
ing them such harm or uselessly aggravating their suffering. In application of that second
principle, States do not have unlimited freedom of choice in the weapons they use.”
20 The challenge of securing greater protection for basic human rights around the globe is
enormous. International human rights standards and institutions have made a signi¬cant
contribution, but enduring protection clearly depends critically on changes in national legis-
lation and legal institutions as well as in social, political, and economic conditions. Human
rights violations are frequently rooted in deep and “longstanding political, economic, and
social ills” often fueled by “[p]rejudice, ignorance, hunger, disease, greed, and political cor-
ruption.” Thomas Buergenthal, International Human Rights Law and Institutions: Accom-
plishments and Prospects, 63 Wash. L. Rev. 1, 18 (1988). See also Richard Bilder, An
Overview of International Human Rights Law, in Guide to International Human Rights
Practices (H. Hanum, ed. 1983), at 17. Autocratic and corrupt governments often in¬‚ict
violations on their citizens. In addition, in many parts of the globe, failed states, in which
27
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


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