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which unsurprisingly bred resentment). Many courts still lacked law libraries
or basic equipment several years after the intervention. (Indeed, for many
judges the issue of applicable law remained moot for well over a year after
UNMIK took over. Until summer 2000, most Kosovar judges lacked copies
of either the pre-1989 statutes or the post-1989 statutes, as well as copies
of international human rights treaties, UNMIK regulations, and European
Court of Human Rights caselaw.) For eighteen months after the NATO air
campaign ended, most courts and prosecutors™ of¬ces also lacked vehicles,
of¬ce equipment, furniture, and full staffs.12
As a result of resource limitations, unresolved jurisdictional issues, and
the dispute over the applicable law, most courts were slow to begin hearing
cases. In many areas, no judicial proceedings were held at all for more than
eight months after the beginning of the UNMIK administration. But NATO
and UN civilian police began arresting criminal suspects as soon as they
were deployed, because the restoration of “law and order,” in the sense of
stopping the widespread violence, was rightly viewed as a key priority.
But though it was appropriate for NATO and UNMIK to treat the reestab-
lishment of security as a top priority, planners and funders failed to make
plans for detaining and trying the hundreds of people who were soon
detained by intervention authorities. Within months after the UN admin-
istration started, hundreds of criminal suspects were detained in makeshift
NATO and UN jails. For the most part, these detainees could not be tried
or even indicted because the courts were so slow. Although virtually any
straight reading of the applicable law (pre-1989 or post-1999 Kosovo law,
European human rights law, whatever) made it clear that detainees could
certainly not be held inde¬nitely without charge, many detainees were not
released, although they were not charged, either.13 Some suspects were also
detained pursuant to the UN Special Representative™s executive powers.14
The UN administration™s commitment to upholding human rights and the
rule of law thus created another conundrum: holding hundreds of people
for inde¬nite periods without charge was surely a problem under anyone™s
reading of the law, but letting dangerous suspects “ including a number
of people accused of war crimes “ back out into the streets also seemed
unacceptable to NATO and UNMIK. Allowing criminals to run free would

12 Id. In spring and summer 2000, a $2 million grant from the U.S. State Department™s Bureau of
Human Rights, Democracy and Labor ultimately recti¬ed some of these resource problems.
13 See Ehrenreich & Spencer, supra note 5.
14 See Organization for Security and Cooperation in Europe, Mission in Kosovo Department
of Human Rights and Rule of Law, The Response of the Justice System to the March
2004 Riots (December 2005), available at http://www.osce.org/documents/mik/2005/
12/17177 en.pdf; see also Organization for Security and Cooperation in Europe, Mis-
sion in Kosovo Department of Human Rights and rule of law, Review of the Criminal
Justice System, April 2003“October 2004, available at http://www.osce.org/documents/
mik/2004/12/3984 en.pdf.
322 CAN MIGHT MAKE RIGHTS?


undermine all of the UNMIK and NATO efforts to restore order, reduce
violence, and increase public con¬dence in the international community™s
commitment to good governance in Kosovo.
UNMIK ultimately resolved this conundrum by issuing UNMIK Regula-
tion 26, which noted blithely that “in order to ensure the proper administra-
tion of justice,” pretrial detainees could be held for a full year if they were
suspected of serious crimes.15 Meanwhile, many Kosovars and international
observers claimed that those suspects who were released (either through the
exercise of prosecutorial discretion or because a judge determined that they
had been held for excessive periods without charge) tended to be dispro-
portionately Albanians who either had “connections” to powerful people
or who had committed revenge crimes against Serbs and other minorities,
whereas those who continued to be detained were often minorities or those
without powerful friends.
The story of missteps in creating the rule of law in Kosovo does not
end here “ further and more recent instances of ethnic bias, corruption, and
intimidation in the courtroom, prison escapes, and so on could all be cited.16
But this is probably enough to show how easy it is for well-intentioned rule of
law reforms to back¬re and become self-undermining. UNMIK and NATO
authorities did their best, but lack of resources, lack of advance planning, and
poor coordination and communication undermined efforts to send consistent
messages about the rule of law.
Recent events in Iraq suggest that many of the lessons of Kosovo remain
unlearned today, at least by the United States. In Iraq, similar missteps and
misunderstandings have exacerbated tensions between Iraqis and the U.S.-led
coalition. As in Kosovo, the tensions between pursuing security and pursuing
political reconstruction goals continues to create problems. Without security,
political reconstruction is dif¬cult, if not impossible, but heavy-handedness
in pursuit of security can alienate citizens and make them less willing to
participate in later reconstruction projects urged by interveners. As discussed
in Chapter 5, the coalition and ordinary Iraqis are still paying a heavy price
for the coalition™s ongoing inability to guarantee a secure environment, and
this affects Iraqi trust of coalition efforts across a wide range of sectors. Given
the poor security environment, “getting it right” in other ways becomes both
more dif¬cult and even more crucial.
So much has been written recently about American mistakes in Iraq that
it is hardly necessary to discuss them at length here. In Iraq as in Kosovo,
linguistic and cultural differences continue to compound the dif¬culties that
coalition of¬cials encounter as they try to build rule of law institutions in
Iraq. Both military and civilian of¬cials charged with working to reform the
Iraqi legal and judicial system generally have little background in Iraqi law

15 UNMIK Regulation 26, reprinted in Ehrenreich & Spencer, supra note 5, Appendix.
16 See supra note 14.
323
CREATING RULE OF LAW CULTURES


or even in civil law systems. This lack of background rankles with many
Iraqis lawyers and judges, who “ though fully aware of their system™s many
problems “ often take pride in their country™s ancient legal traditions, which
date back to the Code of Hammurabi from the 18th century B.C.
Also as in Kosovo, the coalition™s substantive commitment to rule of law
values sometimes clashes with the formal aspects of the rule of law. Ten-
sions have emerged, for instance, over detentions policy, with many Iraqi
judges complaining that coalition of¬cials detain Iraqi suspects who have
been ordered released by Iraqi judges and equally arbitrarily release suspects
who had been ordered detained by the judges. From the perspective of the
judges, this is sheer arbitrariness and disrespectful of Iraqi legal process.
From the perspective of coalition of¬cials, many of whom are U.S. of¬cers
with the Judge Advocate General™s Corps (JAG), this represents an effort to
correct substantive defects in the Iraqi judicial process. As a coalition of¬cial
explained to one of this book™s authors, at times coalition of¬cials free sus-
pects because they are convinced that the evidence against them was obtained
through coerced confessions elicited after beatings or torture; at other times,
coalition of¬cials order the continued detention of suspects when they are
convinced that judicial release orders were in¬‚uenced by nepotism, bribery,
or intimidation.
These coalition acts may be well intentioned, and in accordance with
the substantive values we associate with the rule of law, but inevitably they
appear arbitrary and hypocritical to some Iraqi observers. Iraqi judges also
complain about the frequent failure of coalition of¬cials to produce detainees
for court proceedings when requested. Here too, coalition of¬cials defend
such failures, attributing them in part to concerns about detainee security
(convoys transporting detainees have frequently been targeted by insurgents)
and in part to simple linguistic confusion. Dif¬culties transliterating Arabic
names often mean that coalition authorities lose track of suspects or confuse
one suspect with another who has a similar name. But when coalition of¬cials
seem unable or unwilling to cooperate with properly issued court orders,
coalition credibility is undermined.
Needless to say, the much-publicized abuses at Abu Ghraib prison in
Baghdad dealt a particularly devastating blow to coalition efforts to pro-
mote the rule of law in Iraq. When photos surfaced in the spring of 2004
depicting American soldiers abusing and humiliating Iraqi detainees (many
of whom were acknowledged by the coalition to be civilians with no known
connection to terrorists or insurgents), coalition efforts to convince Iraqis
to accept U.S. efforts to reform Iraqi police and prisons were badly under-
mined. To the extent that the Abu Ghraib abuses have come to be seen as
linked to broader U.S. government disregard for the Geneva Conventions,
the Convention Against Torture, and other international legal norms and
institutions, Iraqis can hardly be blamed for questioning the genuineness of
the U.S. commitment to the rule of law.
324 CAN MIGHT MAKE RIGHTS?


Many Americans, both military personnel and civilians, have worked sen-
sitively and respectfully with Iraqi counterparts to foster shared rule of law
goals. But the good work and good intentions of these individuals are badly
undermined whenever other Americans commit abuses or simply behave in
an arrogant or culturally inappropriate way. American military practices
such as house-to-house searches have, in some towns, led to enormous ill-
feeling between soldiers and Iraqi civilians, and poor conditions at American-
run detention facilities have also created substantial bitterness. “Collateral
damage” in the form of civilian deaths have also generated anticoalition
sentiment in Iraq.
In a poll of Iraqi public opinion done just prior to the Abu Ghraib scan-
dal, 80 percent of Iraqis said they lacked con¬dence in the coalition, and
82 percent disapproved of the coalition. By May 2004, a survey commis-
sioned by the Coalition Provisional Authority found con¬dence in the coali-
tion down to a mere 11 percent. Ninety-two percent of Iraqis told coalition
pollsters that they viewed the United States as an occupying force, and 54 per-
cent said they believed that all Americans behaved like the American guards
portrayed in the Abu Ghraib prison abuse photos. Iraqi attitudes toward the
coalition and the intervention itself have ¬‚uctuated over time, and a Time“
ABC poll conducted in October and November of 2005 suggested contin-
uing ambivalence: although 46 percent of Iraqis said they felt “the US was
right to invade Iraq,” 64 percent said they “oppose Coalition forces.”17 But
different segments of the Iraqi population view the situation differently. Sup-
port for the invasion was highest in Kurdish areas (80 percent), where only
22 percent said they “oppose Coalition forces”; these ¬gures were 58 percent
and 59 percent, respectively, in Shiite areas; in Sunni areas, only 16 percent
said “the US was right to invade,” and 85 percent opposed coalition forces.
Overall, 51 percent of Iraqis surveyed said “life is better since the war,” with
the numbers again varying substantially among the different groups.18
These ambivalent results point again to the inherent contradiction that
plagues virtually all post-intervention rule of law efforts. Although there is,
as Chapter 3 noted, much disagreement about precisely how to de¬ne the rule
of law, at its heart lies the idea that processes based on rules and reasons must
trump force, that rights are more important than might. Yet in Iraq today,
American efforts to create the rule of law encounter an immediate paradox.
The United States governed Iraq because its coalition had the military muscle
to defeat Saddam Hussein™s demoralized army and because its status as the
world™s sole superpower kept other nations from interfering, despite much
global skepticism about the legality and legitimacy of the intervention.

17 Brookings Iraq Index, January 17, 2006, at 38, available at http://www.brookings.edu/
fp/saban/iraq/index.pdf (October/November 2005 Time-ABC News Poll).
18 Id.
325
CREATING RULE OF LAW CULTURES


As we have noted, this inherent contradiction complicates all post-
intervention rule of law efforts to a greater or lesser degree. By de¬nition,
interveners are in a position to promote the rule of law in post-con¬‚ict soci-
eties because the balance of force is in their favor. Interveners can impose
governance blueprints and institutional reform because local populations
must cooperate, at least to some degree, to survive and prosper. But imposed
reforms rarely generate the genuine popular support that will enable them
to endure in the longer-term, and popular support is particularly dif¬cult to
come by if the interveners are seen as hypocritical or motivated by less-than-
altruistic concerns.
How acute this problem is will depend on the context. In East Timor,
this problem was relatively unimportant, because interveners enjoyed both
a clear legal mandate from the UN Security Council and signi¬cant local
support. Likewise, in Afghanistan, 82 percent of Afghans surveyed told
researchers that “overthrowing the Taliban government was a good thing for
Afghanistan” and 83 percent have a favorable view of U.S. forces there.19 In
Kosovo, the situation was somewhat murkier: NATO™s military intervention
was widely welcomed by Kosovar Albanians, although its legality was con-
tested by some key states. Even so, as the examples above suggest, the initial
goodwill the intervention enjoyed was undercut by some early decisions,
leaving interveners vulnerable to charges that their own authority in Kosovo
was itself in tension with rule of law values. In Iraq, in the face of a deeply
divided international community and strongly divided domestic views, the
disconnect between the coalition™s rule of law rhetoric and its sometimes
discordant actions was particularly glaring.
There is no way to wish these dif¬culties away. Nonetheless, once we
recognize that the rule of law is a matter of cultural commitments as much as
a matter of formal institutions and legal codes, the lessons from past mistakes
are fairly straightforward. Policymakers who want to promote the rule of
law in post-intervention societies can avoid some of the pitfalls illustrated
here by the examples from Kosovo and Iraq. Avoiding these pitfalls won™t
guarantee success in creating the rule of law “ but it can help protect against
catastrophic failures.
Six ways to minimize harm:
r First, and most obviously, interveners need to acknowledge the paradox
inherent in the project of trying to pull the rule of law from the barrel of
a gun, and the ways in which the very fact of the intervention itself may
undermine their claims about the value of the rule of law. There™s no way
around this problem, but acknowledging it at least makes the nature of
the challenge clearer.
19 New WPO Poll: Afghan Public Overwhelmingly Rejects al-Qaeda, Taliban, January 11,
2006, available at http://www.worldpublicopinion.org.
326 CAN MIGHT MAKE RIGHTS?

r Second, interveners need to be committed to transparency in their own
actions. It™s better to acknowledge it when a particular program or policy
is being forced on a society or group. When interveners seek to create
consultative processes, as was done in Kosovo, but then ignore advice
they don™t like, it undermines their credibility. Acknowledging that cer-
tain policies and principles are nonnegotiable, at least in the short term,
may make interveners unpopular “ but hardly more unpopular than they
are when they feign a willingness to allow local societies to make their
own choices but then veto their choices.
Being transparent also means acknowledging that problems and
mistakes are inevitable: innocent people may be detained or even killed;
foolish regulations may be promulgated and then rescinded; rash poli-
cies may be enforced and altered only after complaints. Acknowledging
all this cannot eliminate the frustration, anger, and grief local residents
will feel over the mistakes of the interveners, but it can ameliorate it to
some extent. Interveners should acknowledge and accept responsibility
for errors past and future.
r Third, and relatedly, interveners need to be accountable for their own
actions. When interveners insist that legal codes in a post-con¬‚ict society
must re¬‚ect international human rights standards, but interveners them-
selves seem unable or unwilling to comply with those same standards,
their credibility suffers. Announcing “ in advance “ a scheme for retroac-
tively adjudicating claims against the interveners and compensating those
who are wronged may help diffuse popular resentment about missteps
made by interveners. Those detained wrongly or for excessive periods
should be entitled to compensation, as should anyone wrongfully physi-
cally harmed by police or military forces or anyone whose property was
wrongly damaged.
It is particularly important for interveners to demonstrate that they
do not have a double standard. When anyone af¬liated with an interven-
ing power behaves inappropriately or commits crimes, interveners need
to ensure that investigation, trial, and punishment are prompt, fair, and
public.
r Fourth, interveners need to be better educated about the language and
culture of the societies in which they are working. Although it is unrealistic
to expect every policymaker or soldier in post-con¬‚ict societies to be ¬‚uent
in local languages and deeply familiar with local history and customs, it is
not unrealistic for governments, NGOs, and intergovernmental agencies
to create and require crash courses for those new to a region and culture.
Some of the mistakes that plagued rule of law efforts in societies like
Kosovo and Iraq could have been avoided with a minimum of cultural
sensitivity.
r Fifth, interveners need to plan rule of law programs carefully before they
begin. It is easier to prevent damage than to undo it, and poor planning
327
CREATING RULE OF LAW CULTURES


often leads only to a need for embarrassing about-faces further down the
road. Of course, planning is useful only if authorities make use of it: one
of the numerous tragedies associated with the U.S. invasion of Iraq was
the failure of Defense Department planners to make use of the extensive
planning done by State Department experts in consultation with Iraqis.
As a result, Defense Department of¬cials were unprepared to protect the
crucial infrastructure that was sabotaged by opposition forces in the early
days after the invasion, although attacks on this infrastructure had been
predicted by many.
r Sixth, interveners should act multilaterally and collaboratively in design-
ing and implementing rule of law programs. Given the paradoxes inherent
in trying to create the rule of law in the wake of military interventions,
interveners need to gain as much legitimacy as possible: rule of law cannot
always be fostered effectively by soldiers with guns. Interventions that are
perceived as unilateral run particular risks, because it is easy for local (or
international) hostility toward a particular intervening state to evolve into
general hostility to the reconstruction projects favored by that intervening
state. This risk can be minimized, to some extent, if post-con¬‚ict tasks are
shared by a broad and multilateral coalition able to promote international
NGO involvement and offer civilian experts as well as military troops.
Here again, Iraq offers a negative example: the U.S.-led military coali-
tion was narrow to begin with, because many states normally allied with
the United States opposed the invasion, which lacked a clear Security
Council mandate. The United States compounded this problem by insist-
ing in the immediate post-invasion period that coalition military forces
and associated government contractors could handle post-con¬‚ict recon-
struction tasks without substantial help from the United Nations, NGOs,
or other experienced actors. (Indeed, U.S. contracting rules initially froze
out potential contractors from states that had not supported the inva-
sion.) This “go it alone” approach meant that many intergovernmental
actors and civilians with relevant skills and experiences were excluded
from early post-intervention activities, and it also focused Iraqi resent-
ment on the coalition. Ensuring that no one state or religion or ethnicity
is seen as behind all rule of law programs can help diminish resentment
and skepticism about the motives of interveners.


II. DOING SOME GOOD: FOSTERING A RULE OF LAW CULTURE

Rule of law promotion efforts stumble when they come up against coun-
tervailing cultural commitments that are resistant to clumsy and formalistic
efforts to change them. At their worst, rule of law programs may do as
much harm as good, if interveners themselves act in ways that seem counter
to rule of law values. When this happens, rule of law programs can actually
328 CAN MIGHT MAKE RIGHTS?


undermine the rule of law. This chapter has suggested that interveners, like
physicians, have a minimum duty to do no harm and urged interveners to
be honest, transparent, accountable, culturally informed and sensitive, well-
prepared, and collaborative in their approaches to rule of law programs. By
heeding the lessons of past failure, future interveners can help avoid unin-
tentionally undermining their own efforts.
But this tells us little about how to actually go about creating rule of law
cultures in post-con¬‚ict societies. This remainder of this chapter will focus
on some of the af¬rmative steps interveners can take to create rule of law
cultures. In previous chapters, we described, ¬rst, many of the essential back-
ground conditions that must be present for rule of law programs to succeed:
the creation of viable post-con¬‚ict governance arrangements, the establish-
ment of basic human security, functioning police, prisons, and courts. We
turn now to the challenge of taking these building blocks and turning them
into something that actually works.
It is worth returning brie¬‚y to the pragmatic de¬nition of the rule of law
we laid out in Chapter 3:
The “rule of law” describes a state of affairs in which the state success-
fully monopolizes the means of violence, and in which most people,
most of the time, choose to resolve disputes in a manner consistent
with procedurally fair, neutral, and universally applicable rules, and in
a manner that respects fundamental human rights norms (prohibitions
on racial, ethnic, religious and gender discrimination, torture, slav-
ery, prolonged arbitrary detentions, and extrajudicial killings). In the
context of today™s globally interconnected world, this requires modern
and effective legal institutions and codes, and it also requires a widely
shared cultural and political commitment to the values underlying these
institutions and codes.
In keeping with this understanding of the rule of law, throughout this book
we have urged a more nuanced approach to promoting the rule of law, built
on the recognition that the rule of law is also a particular set of cultural com-
mitments. For the rule of law to exist, more is needed than courthouses and
statutes. In fact, from a purely theoretical perspective, the rule of law could
exist even in a society with no courthouses and no statutes. The rule of law is
valuable because it protects people from the arbitrary exercise of power by
public of¬cials, allows people to plan their affairs with con¬dence, and helps
shield people from abuses. Theoretically, a wide range of different institu-
tions and norms could accomplish these ends. As this chapter has already
noted, modern legal institutions are neither essential to accomplishing these
ends nor can they guarantee that these ends will be achieved.
But, as the second part of our de¬nition suggests, the sheer intercon-
nectedness of today™s global society makes the development of modern
legal institutions necessary in post-intervention settings. Every successful,
329
CREATING RULE OF LAW CULTURES


prosperous and peaceful country in the world has some roughly similar legal
institutions, and if post-intervention societies are to take their place as equal
players on the world stage, they too need to improve or develop modern
legal institutions similar to those that thrive elsewhere.
Nonetheless, it is important to distinguish between means and ends. The
rule of law is an end; our familiar modern legal institutions are one means of
achieving that end, but not the only means, and at times not even the most
effective means in the shorter term. Particularly in the immediate wake of
violent con¬‚icts, law reform may not be the only way to develop a culture of
procedural fairness and respect for human dignity and rights. There may be
times when “nonlegal” approaches, such as informal or traditional dispute
resolution, do more to quickly establish the rule of law than any number of
courthouse refurbishments or judicial training programs.
Realistically, as noted above, all post-intervention societies will be under
pressure to develop modern legal institutions, so throughout this book we
have assumed that such institutions must and will be developed along lines
familiar to inhabitants of most developed nations. In the 21st century, it is
no longer feasible for successful states to ignore the norms and institutions
of other successful states. Nonetheless, making modern legal institutions
successful in post-con¬‚ict societies requires going far beyond the approaches
taken by traditional rule of law programs.
The rule of law requires people to know what law is and believe in its
worth. Building rule of law cultures in post-con¬‚ict societies thus requires
interveners to develop programs that seek to integrate legal norms into all
aspects of life and into all sectors of society. This means a willingness to
focus on longer-term initiatives designed to improve legal education and
to strengthen civil society, and it also means moving beyond state institu-
tions, beyond major urban areas, and beyond political elites. It also means
moving beyond the obviously “legal” and recognizing the value of seemingly
“peripheral” activities such as informal dispute resolution, media campaigns,
education, and antipoverty programs.
We now turn to some of the kinds of programs critical to creating rule of
law cultures. We ¬rst highlight several particularly important and promising
kinds of initiatives: those that focus on strengthening supportive civil soci-
ety institutions, those that focus on legal education, including law clinics;
those that seek to link formal legal institutions to informal and customary
law practices; and those that focus on transferring law-related skills to non-
lawyers, including paralegals and trained mediators.
It is beyond the scope of this chapter to do more than highlight some of
the most promising ways interveners can help foster long-term rule of law
cultures: whole chapters, or even books, could be written about each of
the programs mentioned above. Our hope is that by identifying and brie¬‚y
describing some of these programs, this chapter will inspire practitioners
to investigate these approaches more deeply and adapt them creatively.
330 CAN MIGHT MAKE RIGHTS?


At the end of the chapter, we summarize what we see as key factors in
creating robust rule of law cultures: getting to the grassroots; strengthening
civil society; shaping the next generation; giving people a stake in rule of
law reform, including marginalized groups such as women, minorities, and
youth; and creativity and willingness to use untraditional tools, such as the
media and pop culture.

A. Good Practice: Nurture a Rule of Law Culture
by Investing in Civil Society

1. Investing in Civil Society Organizations
Legal institutions do not exist in isolation. If fair and ef¬cient courts will
be ineffective without decent legislation, honest and effective police, good
lawyers, and a decent prison system, all of these institutions depend equally
on supportive social institutions such as media, civic associations, and
NGOs. These social actors help educate people about legal institutions and
also help educate legal institutions about the broader society: as watchdogs
and advocates, they can help keep legal institutions honest and ensure that
injustices and institutional failures can be remedied.
Local NGOs that are well designed and supported can play an indispens-
able role in helping to build a more transparent, effective, and fair justice sys-
tem.20 One example is the Judicial System Monitoring Programme (JSMP),
an East Timor NGO, which monitors and provides independent information
on East Timor™s judicial system.21 Established in 2001, the JSMP™s mission is
“to contribute to the ongoing evaluation and building of the justice system
in East Timor” through “court monitoring, the provision of legal analysis
and thematic reports on the development of the judicial system, and outreach
activities.”22 In addition to evaluating progress in East Timor™s district courts
and court of appeal, the JSMP has a Women™s Justice Unit that examines the
particular impact of the system on women. The JSMP also has evaluated
traditional justice mechanisms in East Timor; it has examined the work of
the Commission for Reception, Truth and Reconciliation (CAVR) and the
work of the Special Panels for Serious Crimes; and it has established a Victim
Support Service focused especially on victims of domestic violence.
This organization, with both Timorese and international staffs, has high-
lighted problems in the justice system, recommended concrete reforms in
legislation and practice, and provided much-needed public information and
scrutiny of the developing justice system in East Timor. Organizations such as
20 Stephen Golub, Civil Society Contributions to Judicial Independence, in U.S. Agency for
International Development, Of¬ce of Democracy and Governance, Guidance for Promoting
Judicial Independence and Impartiality, revised edition, January 2002, at 166“175.
21 Judicial System Monitoring Programme, http://www.jsmp.minihub.org (last accessed
Jan. 31, 2006).
22 Id., mission statement.
331
CREATING RULE OF LAW CULTURES


this can play a vital role in monitoring and strengthening justice institutions
in post-con¬‚ict societies and should be well supported and funded.23
In many post-intervention societies, similar NGOs either exist or can
be developed relatively quickly once minimal political stability is restored.
NGOs can, of course, be narrow in their focus or extremely broad. Some
may be explicitly legal in their focus, conducting legal research, urging law
reform, raising awareness of violations of the law, or initiating impact litiga-
tion in an effort to redress rights abuses or draw attention to gaps in the law.
But NGOs not explicitly focused on law and legal institutions can also play
valuable roles in fostering the rule of law: they can be a critical means of cit-
izen mobilization and participation on a wide range of issues; they can help
educate members and constituents about new law-related initiatives; they can
conduct research and generate policy proposals in ways that ultimately foster
rule of law goals of civic engagement and reasoned settlement of disputes.
When considering how NGOs can foster rule of law cultures, practitioners
should keep in mind that “nonlegal” civil society organizations can be just
as important to the rule of law as more obviously law-oriented NGOs. An
NGO that focuses on the status of women through education and health care
may be as important in rule of law efforts as a women™s legal rights NGO,
for instance: just as post-con¬‚ict societies as a whole cannot realize rule of
law goals without basic physical security, so too it is dif¬cult to meaning-
fully vindicate women™s legal rights when women lack education and access
to basic health care. Similarly, well-functioning neighborhood associations
or religious associations can help identify needs, disseminate information,
prevent disputes from getting out of hand, and be a locus for community-
based initiatives. Which civil society groups are most important will vary
from society to society, and from region to region, and for different demo-
graphic groups as well. What we want to emphasize, here as throughout this
book, is that practitioners should avoid adopting a narrow understanding
of the rule of law and a consequent cookie-cutter approach to supporting
programs and organizations. Instead, practitioners should be open-minded,
creative, and willing to work with what they ¬nd rather than import their
own assumptions.
One reason for caution is that NGOs can be destructive as well as con-
structive. In post-con¬‚ict environments, where unemployment levels may be
high and where foreign donors may be anxious to support ¬‚edgling civil
society initiatives, the entrepreneurially minded have a strong incentive to
form NGOs that are likely to appeal to interveners and donors. This in itself

23 The JSMP™s funders include international NGOs, foundations, UN agencies, and govern-
ment agencies, such as the U.S. Agency for International Development. Id. Donors Page.
In Afghanistan, Amnesty International urges that the Afghan Independent Human Rights
Commission (AIHRC) be supported to engage in “independent monitoring of the criminal
justice system from a human rights law perspective.” Amnesty International, Afghanistan:
Re-establishing the Rule of Law, August 14, 2003, at 58“59, 5.
332 CAN MIGHT MAKE RIGHTS?


is not necessarily a bad thing, but interveners and funders need to be alert
to the structure of post-con¬‚ict incentives. In a context in which interveners
may be eager to identify and fund local NGOs operating in the rule of law
sector, NGOs may deliberately or inadvertently overstate their capacities. A
few may be actually fraudulent, designed mainly to siphon off donor funds.
All NGOs, no matter how competent and ethical, may face a strong temp-
tation to tell interveners what they want to hear “ and interveners face a
strong temptation to accept even implausible claims as true, in order to send
positive progress reports back to their own domestic constituencies.
This has two implications for interveners. First, interveners are well
advised to do careful research before supporting or relying on a particu-
lar NGO, because appearing to uncritically support an NGO that is weak,
biased, or fraudulent will undermine intervener credibility with other local
stakeholders, as well as waste time and money. But, second, interveners
should also give attention to helping NGOs and other civil society orga-
nizations build capacity and develop internal and external accountability
mechanisms. In Iraq, for instance, where repression under Saddam Hussein
had thwarted the development of a lively NGO sector, the U.S. Agency for
International Devlopment developed an innovative project called “NGO in
a box,” which was designed to help local NGOs spring up and develop
their capacity. In essence, the project sought to provide ¬‚edgling NGOs with
everything needed to get started quickly, providing everything from basic
of¬ce equipment to a series of workshops on issues ranging from budgeting
to accountability. Similar programs have been undertaken in Liberia and
other post-con¬‚ict settings as well. Although such programs cannot guaran-
tee healthy, transparent, and accountable NGOs, they can nonetheless make
such outcomes more likely.
Support for bar associations and judges associations can also be a valuable
long-term investment. Independent bar associations, among other things, can
develop codes of conduct for lawyers, serve as a source of advice on legisla-
tion and judicial reform, and, if resources permit, potentially organize mech-
anisms for legal representation of indigent defendants.24 Similarly, judges™
associations can potentially develop codes of conduct for jurists and provide
a vehicle for training programs, judicial exchanges, and other opportunities
to interact with judges from well-established judicial systems. Given the dif-
¬cult working conditions of judges in many post-con¬‚ict settings, ¬nancial
and technical support for judges™ associations can, over time, help reinforce
the importance and value of an impartial judiciary.


24 Mark S. Ellis, International Legal Assistance, in Post-Con¬‚ict Justice (M. Cherif
Bassiouni, ed., 2002), at 932“933. In Afghanistan, for instance, Amnesty International rec-
ommends “creation of an independent bar association, capable of overseeing and organizing
the work of defense lawyers” as “an essential component of the judicial reform program.”
Amnesty International, Afghanistan, Re-establishing the Rule of Law, supra note 23, at 35.
333
CREATING RULE OF LAW CULTURES


Here too, a word of caution is in order. As with NGOs, bar and judi-
cial associations can play valuable roles, or destructive roles, depending on
their degree of capacity and degree of accountability, transparency, and com-
mitment to high ethical standards. In some societies, lawyers and judges
are respected for their learning and integrity and legal and judicial asso-
ciations can quickly play constructive roles if given ¬nancial or technical
support. In other societies, however, where the quality of the bar and the
judiciary is low, or where lawyers and judges are seen as corrupt or com-
plicit in abuses, external support for such associations can back¬re. Of
course, bar and judicial organizations can be reformed, or new organizations
started, in ways that raise professional standards “ but here as elsewhere,
interveners need to do their homework before leaping to support organi-
zations that may look good on paper. The only thing worse than ignor-
ing such potentially critical civil society allies is rushing in blindly before
understanding how local players regard a given organization or professional
group.

2. Investing in Legal Education
Supporting legal education is a critical investment in a sound justice system.25
Interveners and donors typically focus on short-term training for lawyers,
judges, and other groups, but in the longer run, building a rule of law culture
will depend in part on nurturing the next generation of legal professionals. In
many post-con¬‚ict settings, law schools are underfunded and understaffed;
curricula may not have been updated for decades. Although investing in law
schools may not be the immediate priority after an intervention, it should
not spend too much time on the back burner, for the relative neglect of
legal education can have long-term costs. As the International Crisis Group
warns, in Bosnia, “The international community™s failure to address legal
education systematically in its law reform programs means that Bosnia risks
being unable to sustain the structures and standards that its foreign patrons
aim to bequeath.”26
Investing in legal education also creates possible synergies with other pro-
grams that help foster rule of law cultures. For instance, well-designed clin-
ical legal education programs can provide valuable professional training to
law students while also providing much-needed assistance to underserved
groups as well.27 Legal aid clinics can focus on gaps in the legal system, such

25 Erik G. Jensen, The Rule of Law and Judicial Reform: The Political Economy of Diverse
Institutional Patterns, in Beyond Common Knowledge: Empirical Approaches to the
Rule of Law (Erik G. Jensen & Thomas C. Heller, eds., 2003), at 359“360.
26 International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegov-
ina, ICG Balkans Report No. 127, 25 March 2002, at 48.
27 For discussion of efforts to develop clinical legal education programs at several Iraqi law
schools, see Haider Ala Hamoudi, Toward a Rule of Law Society in Iraq: Introducing
Clinical Legal Education into Iraqi Law Schools, 23 Berk. J. Int™l L. 112 (2005).
334 CAN MIGHT MAKE RIGHTS?


as inadequate criminal defense services,28 or on impact litigation or even on
community organizing or legal and policy research.
Outside of post-con¬‚ict settings, clinics have played important roles in
helping build rule of law cultures. In South Africa, legal clinics at nonwhite
universities helped draw attention to abuses during the apartheid era, while
nurturing a generation of educated African lawyers who were poised to take
on leadership positions when apartheid ended. After the transition away
from apartheid, South African legal clinics have continued to play an impor-
tant role in providing legal services for the indigent, in keeping the spotlight
on structural inequalities in postapartheid society, and in seeking to ensure
that rights declared in the postapartheid South African constitution have
practical meaning for ordinary people. From Argentina to China, experimen-
tal clinics have sprung up in the past decade and have often been important
legal innovators.29
Although there are fewer examples of successful clinics in post-
intervention settings, there is every reason to think they can play a similarly
valuable role there. In Sierra Leone, for instance, a human rights clinic sprang
up at Freetown™s Fourah Bay College (FBC) even before many other impor-
tant post-con¬‚ict institutions had come into being (it slightly predated the
Truth and Reconciliation Commission and the Special Court, for instance).
Founded by a group of young Sierra Leonean law professors and students
with funding and technical support from the Open Society Institute, the FBC
Human Rights Clinic undertook a mix of projects, from free representation
of the poor to human rights education programs in local high schools. Clinic
students work closely with local and national NGOs, and the clinic also
places students as holiday interns with NGOs.
The potential bene¬ts of such clinical programs are enormous. Indigent
people and NGOs bene¬t by receiving free assistance from students. Students
bene¬t by learning advocacy skills and substantive law, and, perhaps as
important, clinics can help students get into the habit of seeing pro bono
work, rather than only pro¬t-seeking, as crucial to the lawyer™s role.

B. Traditional Dispute Settlement Mechanisms and Their Relationship
to Formal Justice Institutions
When considering ways to foster rule of law cultures, interveners should
also examine the degree to which formal legal institutions are utilized in a
given society. In some societies educated urbanites may have made extensive
use of formal legal institutions prior to an intervention, and be ready to
use them again once stability is restored, but these same institutions may
28 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 23, at
35“36.
29 See generally Aubrey McCutcheon, University Legal Aid Clinics: A Growing Presence with
Manifold Bene¬ts, in Many Roads to Justice (Ford Foundation, 2000).
335
CREATING RULE OF LAW CULTURES


have been virtually irrelevant in rural areas or among less educated and less
af¬‚uent people. In such contexts, many people may be more accustomed
to turning to traditional or informal dispute settlement mechanisms. These
may range in complexity and legitimacy, but in some societies, traditional
dispute resolution mechanisms enjoy considerable local support.
In East Timor, customary con¬‚ict resolution practices are diverse, but
many involve community-based processes of arbitration in which village
elders and “Lia-nains” (or custodians of traditional law) serve as neutral
third parties. Such traditional processes differ from the formal legal system
in the high emphasis they place on maintaining harmony and on restorative
justice,30 and a recent Asia Foundation survey found that most Timorese
were “most comfortable and familiar” with customary dispute resolution
processes and viewed the formal legal system as “less fair, less accessible,
more complex, and a greater ¬nancial risk.”31 The survey found substantial
public support for reliance on traditional dispute resolution processes to
settle con¬‚icts over land and “minor” offenses such as theft.32
Local and tribally based dispute mechanisms also play a signi¬cant role
in rural Sierra Leone.33 Traditional mechanisms, which vary considerably
among different groups and regions, generally include an ascending hierarchy
from family-based mechanisms to dispute resolution by community elders
and/or religious leaders to “chiefs™ barray” (chiefs assisted by elders), to
local courts in the provinces presided over by chairmen appointed by (and
removable by) the Interior Minister.34 Even before the civil war, courthouses

30 Christian Ranheim, Legal Pluralism in East Timor: The Formal Judicial System and
Community-based Customary Law, prepared for the project, The Role of Non-State
Justice Systems in Fostering the Rule of Law in Post-Con¬‚ict Societies, United States Insti-
tute of Peace, February 2005, at 12. On customary dispute settlement in East Timor, see also
Tanya Hohe & Rod Nixon, Reconciling Justice: “Traditional” Law and State Judiciary in
East Timor, Report prepared for the United States Institute of Peace, January 2003, avail-
able at http://www.jsmp.minihub.org/Traditional%20Justice/Indextraditional.htm; David
Mearns, Looking Both Ways: Models for Justice in East Timor, Australian Legal Re-
sources. Int™l (2002), available at http://www.jsmp.minihub.org/Traditional%20Justice/
Indextraditional.htm; Aisling Swaine, Traditional Justice and Gender Based Violence, Inter-
national Rescue Committee Research Report, August 2003, available at http://www.jsmp.
minihub.org/Traditional%20Justice/Indextraditional.htm; Judicial System Monitoring Pro-
gramme, Findings and Recommendations: Workshop on Formal and Local Justice
Systems in East Timor, July 2002, available at http://www.jsmp.minihub.org/Traditional%
20Justice/Indextraditional.htm.
31 Ranheim, Legal Pluralism in East Timor, supra note 30, at 2.
32 The Asia Foundation, Law and Justice In East Timor, A Survey of Citizen Awareness and
Attitudes Regarding Law and Justice in East Timor, February 2004, at 3.
33 Abdul Tejan Cole & Mohamed Gibril Sesay, Traditional Justice Systems and the Rule of
Law in Post Con¬‚ict Sierra Leone, prepared for the project, The Role of Non-State Justice
Systems in Fostering the Rule of Law in Post-Con¬‚ict Societies, United States Institute of
Peace, August 2005.
34 Id.
336 CAN MIGHT MAKE RIGHTS?


only existed in major cities. As a result, the vast majority of “legal” problems
(from crime to divorce to real estate transactions) were handled informally
or through tribal elders and chiefs. As a result, changes to the formal law
and formal legal institutions had little relevance to most people™s lives.
So too in rural Afghanistan. As a recent USIP report noted, “[o]utside
of the major cities, village councils or tribal elders have for generations
played the predominant role in resolving disputes and meting out jus-
tice.”35 Dispute settlement practices by jirgas or shuras vary considerably
among Afghanistan™s different ethnic groups and regions. Some features
that tend to recur, however, are a focus on restorative damages and for-
mal apology rituals, with some notably severe penalties for offenses such as
adultery.36
In such contexts, interveners need to understand that focusing solely on
formal legal institutions may have only a very limited impact, perhaps only
on urban elites. Reaching rural and less af¬‚uent people may require ¬nding
creative ways to engage with traditional and customary dispute settlement
regimes. Sometimes, where traditional processes are viewed by local people
as highly credible and fair, interveners may wish to import some features
of traditional processes into formal legal institutions, because these formal
institutions may become less irrelevant to ordinary people if they borrow
from preexisting rules and procedures.
Here too, however, interveners need to exercise caution. On the one hand,
rule of law efforts should not ignore the role of traditional and informal dis-
pute settlement mechanisms, because these may command substantial loy-
alty and may offer useful models for more formal institutions. On the other
hand, traditional dispute settlement mechanisms may be substantively or
procedurally problematic: they may privilege men over women, or one eth-
nic group over another, and interveners may confront dif¬cult instances in
which long-standing customary practices violate fundamental rights.
In Sierra Leone, for instance, the customary system is highly patriarchal
and tends to favor males and older disputants, which “stack[s] the system
against youths, women, the poor and members of weak lineages.”37 Yet for
the majority of citizens, lack of access to the formal court system means that
this, for better or worse, is primarily “the law people see.”38

35 Laurel Miller & Robert Perito, Establishing the Rule of Law in Afghanistan, United States
Institute of Peace Special Report 117, March 2004, at 10.
36 International Legal Foundation, The Customary Laws of Afghanistan, September 2004,
available at http://216.239.51.104/search?q=cache:Aw5XW8xWGvkJ:www.theilf.org/ILF
cust law afgh 10-15.doc+International+Legal+Foundation,+The+Customary+Laws+of+
Afghanistan&hl=en&gl=us&ct=clnk&cd=2.
37 Cole & Sesay, Traditional Justice Systems and the Rule of Law in Post Con¬‚ict Sierra Leone,
supra note 33, at 50.
38 See Owen Alterman, Aneta Binienda, Sophie Rodella, & Kimyia Varzi, National Forum for
Human Rights, The Law People See: The Status of Dispute Resolution in the Provinces of
Sierra Leone in 2002, January 2003.
337
CREATING RULE OF LAW CULTURES


In Afghanistan, the same is true in many regions. In Pashtun areas,
for example, jirgas consider and adjudicate even the most serious crimes,
and damages can include “cash, services, animals, and also the transfer of
women.”39 In an Afghan customary practice, known as “Bad,” jirgas can
resolve murder cases “by ordering that the alleged perpetrator provide the
family of the alleged victim with a young girl or girls, usually below the
legal marriage age, in order to compensate for the alleged crime” and “the
girl, who is ˜exchanged,™” may then be forced to marry “a male member of
the victim™s family.”40 Needless to say, this practice con¬‚icts with interna-
tionally accepted human rights norms, and like other traditional laws and
practices that run counter to international human rights norms, it creates a
quandary for interveners. On the one hand, interveners may wish to work
with traditional authorities or ¬nd ways to piggyback reforms onto tradi-
tional institutions and may thus be reluctant to challenge long-standing and
locally accepted practices. But on the other hand, interveners need to make
every effort to end abusive practices such as coerced marriages: failing to
end the practice not only harms the women and girls who are treated as
chattel or forced into unwanted marriages but also undermines broader rule
of law messages about the equal dignity and worth of men and women,
which interveners need to support. As a result of these challenges, working
with traditional dispute resolution mechanisms can be dif¬cult and sensi-
tive, and interveners who are only super¬cially familiar with local customs
and institutions may ¬nd themselves inadvertently propping up practices
they oppose. This does not make efforts to work with traditional dispute
resolution mechanisms worthless: well-designed and sensitive programs can
empower local reformers to change traditional norms themselves (there is
some evidence that support within Afghanistan for “limiting the authority of
customary law mechanisms, particularly in areas of criminal justice,” may,
in fact, be growing, for instance).41
While interveners engaged in justice system reform are becoming more
attentive to the role of traditional dispute settlement practices, gaining a
detailed understanding can be dif¬cult and time consuming. Good empirical
information is needed to understand how such practices operate in particular
post-con¬‚ict societies and communities,42 as well as their impact on different

39 Mark A. Drumbl, Rights, Culture, and Crime: The Role of Rule of Law for the Women of
Afghanistan, 42 Colum. J. Trans™L L. 349, 384 (2004).
40 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 23, at 50.
41 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 35, at 10;
Afghan Independent Human Rights Commission, Program on Humanitarian Policy and
Con¬‚ict Research, Human Rights and the Rule of Law: Constitutional and Legal Reform
(Roundtable) (2003), at 13.
42 See Erik Jensen, The Rule of Law and Judicial Reform, in Beyond Common Knowledge,
supra note 25, at 336, 362“363. In Pakistan, for instance, “[t]raditional community-based
ADR . . . were regarded as speedy and inexpensive but largely unjust, mostly owing to the
fact that they were easily captured by local elites.” Id. at 363.
338 CAN MIGHT MAKE RIGHTS?


segments of the population, including women and other vulnerable groups;
their perceived legitimacy; and their consistency with fundamental human
rights. Given the frequent delays and dif¬culties in extending formal justice
institutions into rural areas in many resource-poor post-con¬‚ict societies,
reliance on informal mechanisms is likely to persist and reformers will need
to address a number of key issues.
In the long run, both interveners and local residents need to consider how
traditional dispute settlement mechanisms will relate to developing state jus-
tice institutions. What is their relationship and what should it be? More
speci¬cally, should the customary system be recognized but restricted (lim-
ited to certain issues or kinds of disputes, with safeguards to protect human
rights) and allowed to coexist in its designated sphere? Alternatively, should
the formal justice system incorporate (and constrain) some aspects of cus-
tomary practice? Or should the customary system be incrementally abolished
as the formal system expands in geographic scope?
Different societies have dealt with this issue in different ways. East Timor™s
constitution leaves open the status of traditional dispute settlement, provid-
ing that “[t]he State shall recognize and value the norms and customs of East
Timor that are not contrary to the Constitution and to any legislation deal-
ing speci¬cally with customary law”;43 Sierra Leone permits some aspects of
customary practice and limits others.44 In Afghanistan, however, “the rela-
tionship between the formal and informal justice systems and the competence
of the informal system is largely unregulated” and unresolved, resulting in
diverse and inconsistent arrangements in different parts of the country.45
In the best of all possible worlds, interveners would ¬nd ways to build
on the positive aspects of informal and customary dispute resolution mech-
anisms, without encouraging their negative aspects. Interveners should not
sacri¬ce core human rights standards and should work with local reform-
ers to protect vulnerable segments of the population. But inevitably, this is
complex and dif¬cult: as reformers work to build local acceptance of rights-
protecting reforms, they may face deeply entrenched obstacles, especially in
the area of women™s rights.

43 Constitution of the Democratic Republic of East Timor, Section 2.
44 Cole & Sesay, Justice Systems and the Rule of Law in Post Con¬‚ict Sierra Leone, supra
note 33, at 42, 47“50.
45 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 23, at 49.
In parts of Afghanistan, for instance, courts have declined to address some criminal and
civil matters until they have been considered in local dispute mechanisms. Id. But there is no
uniformity on this, and the role that these mechanisms should play has yet to be resolved.
But, in light of their signi¬cance, Amnesty International urges that the “competence of
informal justice systems must be clearly set out in the law in order to remove any ambiguity
regarding” their role, that their relationship to the formal justice system be clari¬ed by law,
and that the Afghan authorities “ensure that the jirgas and shuras, if they are allowed to
function, fully conform to international human rights law.” Id. at 51.
339
CREATING RULE OF LAW CULTURES


In East Timor, for example, UNTAET sought to encourage the Timorese
to refer crimes of gender-based violence, such as rape, to the formal justice
system rather than to informal dispute mechanisms. But UNTAET™s efforts
ran up against dif¬culties caused not only by long-standing practices and cul-
tural attitudes but also by economic realities. In East Timor, a woman who
has been raped may face social stigmatization and be unable to marry. As a
result, traditional dispute mechanisms tend to include a practical focus on
locating alternative means of economic support for a rape victim, because,
after a rape, she may be unable to ¬nd a husband to help support her.46
Given these social and economic realities, Timorese women may be reluctant
to turn to formal legal institutions in cases of rape, since although these for-
mal institutions may be more respectful of women™s equal rights, they don™t
encompass the kinds of community-enforced economic remedies offered by
traditional mechanisms. Interveners committed to protecting fundamental
human rights thus need to appreciate the larger social and economic context
to design reforms likely to effectively advance those rights over time.
But at least in some cases, interveners may be able to identify innova-
tive ways to accommodate local traditions without compromising human
rights. In the case described above, there is no inherent reason the formal
legal system could not provide remedies that take equal account of women™s
economic situation. Reparations could be provided in addition to criminal
penalties, for instance: within East Timor, reparations in the form of animals
and food are a form of sanction that is deeply rooted in cultural practices;
such practices could be incorporated as part of punishments in the criminal
justice system without sacri¬cing core human rights standards.

C. The Role of Paralegals and Mediators
Supporting programs that make use of paralegals and trained mediators
is another way interveners may be able to develop useful synergies (and
even healthy competition) between the formal justice system and informal
dispute settlement mechanisms. In Sierra Leone, for example, the introduc-
tion of community-based paralegals in rural areas, supported by NGOs,
has provided a valuable (and free) alternative dispute settlement resource.
By educating citizens about their legal rights within the formal justice sys-
tem, and advocating for their interests with local chiefdom authorities, these
paralegals have provided valuable pressure for reform, serving “as bridges
between the two legal regimes” and helping citizens pursue the most effective
options among those available.47 With citizens more aware of their rights
46 Erica Harper, The Effectiveness and Sustainability of UN Legal Codes in Post-Con¬‚ict
Situations (2005 draft, on ¬le with authors).
47 Vivek Maru, The Challenges of African Legal Dualism: an Experiment in Sierra Leone,
Justice Initiatives, February 1, 2005, at 21“22, available at www.justiceinitiative.org/db/
resource2/fs/?¬le id=15277.
340 CAN MIGHT MAKE RIGHTS?


and options, traditional authorities may face greater incentives to offer rea-
sonable dispute settlement arrangements if they wish to continue to attract
customers for their services.
The rule of law is not the exclusive province of lawyers; in some societies,
paralegals and mediators drawn from within poor and rural communities
may be far more effective than lawyers would be in spreading awareness
of legal remedies and in encouraging people to use legal institutions. And
regardless of the role played by traditional dispute resolution mechanisms
in a given society, access to justice is a major problem for the poor, the
less educated, and the less urban populations of many societies. Supporting
paralegals and mediators can be an ef¬cient and cost-effective way to spread
information and skills beyond elite sectors of society. Training a lawyer or
a judge takes several years, but equipping nonprofessionals with basic legal
advocacy skills, information, and/or mediation skills can be done far more
quickly.


III. PUTTING IT ALL TOGETHER

Every society is different, and there is no “one size ¬ts all” approach to cre-
ating rule of law cultures. Building on traditional dispute-resolution mech-
anisms may be an excellent idea in societies in which such mechanisms are
popular and seen as credible and fair; in another society, however, tradi-
tional mechanisms may be viewed by many as part of an unjust hierarchy,
and interveners who become associated with these mechanisms may quickly
lose credibility. Similarly, supporting a judges™ association may be just the
right approach in a society with capable, ethical judges who are respected
by other stakeholders, but it may back¬re if judges are viewed as corrupt,
incompetent, or complicit in abuses.
The ¬rst part of this chapter discussed some the ways in which interveners
can unwittingly undermine their own rule of law efforts and urged interven-
ers to be honest, transparent, accountable, educated about the societies in
which they work, careful in their research and planning, and collaborative
in their approaches to developing rule of law programs. In the second part
of the chapter, we discussed some af¬rmative approaches to building rule of
law cultures. Here as elsewhere in this book, we won™t conclude by offering
a list of “best practices”; what is best in one context may be a disaster in
another setting. Similarly, offering “lessons learned” is too optimistic: the
international community is only beginning to recognize the lessons of past
successes and failures, and it would be premature to assume that any lasting
learning has taken place.
Instead, the remainder of this chapter simply outlines some of the key
issues that interveners should consider when seeking to foster a durable cul-
tural commitment to the rule of law.
341
CREATING RULE OF LAW CULTURES

A. Getting to the Grassroots
Most traditional rule of law programs focus on political and economic elites:
judges, lawyers, and politicians are targeted by training programs and reform
efforts. But this elite focus overlooks the fact that for the rule of law to
exist, the law™s “consumers” “ ordinary people as well as elites “ need to be
convinced of the value of legal institutions. It also overlooks the fact that in
many troubled societies, the formal institutions of the law often draw their
consumers from only a tiny slice of society. Interveners need to ¬nd ways to
reach beyond cities, state institutions, and elites.
This can be done in a number of ways:
r Programs that seek more broadly to educate nonelites about law, human
rights, and governance can have signi¬cant spillover effects on more tradi-
tional justice sector programs. The same is true for programs that train cit-
izens in community organizing and advocacy techniques. Such programs
can often work with and through preexisting NGOs or civil society groups
(from churches to teachers™ associations). Such programs can have bene¬ts
across sectors, enabling nonelites to lobby more effectively for bene¬cial
health and economic programs, for instance, as well as simply educating
them about the law.
r Similarly, programs that help nonelites gain access to courts and other
governance institutions to resolve problems can increase public con¬-
dence in justice sector institutions. Such projects may include “access to
justice” programs such as legal aid of¬ces and clinics that offer free or
low-cost legal advice and representation, pro se projects that train peo-
ple to represent themselves, and paralegal-based projects that train and
utilize nonlawyers with some legal training to serve as advocates and
mediators.
r In its broad sense, the rule of law is also strengthened by programs that
offer con¬‚ict resolution services such as mediation to enable people to
resolve disputes without using formal legal institutions. In societies with
strong preexisting traditions of informal dispute resolution, these pro-
grams may often be most effective if they can be tied into credible existing
dispute resolution methods, involving, as appropriate, religious or tribal
¬gures, for instance.


B. Strengthening Civil Society
Building and sustaining a rule of law culture also requires a strong civil
society. Since a critical goal of the rule of law is to protect citizens from
of¬cial arbitrariness and abuse, strong nongovernmental organizations play
a major role in keeping government of¬cials accountable. Strengthening
media, NGOs, and other civil institutions is often seen as a task that is
distinct from rule of law promotion, but it should instead be seen as part
and parcel of promoting the rule of law.
342 CAN MIGHT MAKE RIGHTS?

r Strengthening responsible and independent media helps discourage cor-
ruption and abuse. In particular, programs that focus on training journal-
ists in ethics and investigative techniques can be helpful.
r NGOs of all sorts (from human rights organizations to youth associa-
tions to women™s groups) can help foster the rule of law, both by serving
as watchdogs and advocates and by helping to ensure an educated and
engaged citizenry. In post-con¬‚ict settings with a history of government
repression, there may be little tradition of independent NGOs; NGOs, if
they exist at all, may mainly be linked to political parties or religious enti-
ties. In such settings, interveners can play a useful role by giving ¬‚edgling
NGOs the resources and training necessary to get up and running. In Iraq,
for instance, USAID started a series of NGO training sessions to help
NGOs get started. USAID was able to deliver “NGO in a box” packages,
including both start-up funding and logistical and technical assistance.
r Particular attention should be given by interveners to strengthening
indigenous policy development capacity in post-con¬‚ict societies. Partic-
ularly in societies that have suffered signi¬cant “brain drain” as a result
of con¬‚ict or lack of economic opportunity, policy-development capacity
may be minimal. As a result, elites may resent interveners, but be unable
to formulate viable policy alternatives themselves. Interveners should pro-
vide resources to encourage serious policy research and development.


C. Shaping the Next Generation
Building a durable rule of law culture is a long-term project. Especially in
post-con¬‚ict societies with little or no prior rule of law tradition, years “
even centuries “ of skepticism about law may need to be “unlearned” before
the rule of law can ¬‚ourish. Inevitably, there is a limit to the degree to which
people can unlearn the habits and assumptions of a lifetime. For that reason,
interveners need to ¬nd ways to encourage younger people in particular to
have a stake in the rule of law.
r Education at every level is crucial to fostering the rule of law. From pri-
mary school onward, lessons about law, legal institutions, governance,
and human rights need to be integrated into texts and curricula. In soci-
eties where secondary schooling is a luxury few can afford, special empha-
sis should be placed on integrating civic and legal education into primary
curricula. Working with teachers™ associations and teacher training pro-
grams can be a crucial tool.
r Training programs for judges and lawyers who have already developed
their own professional habits and identities will not be as effective in
the long run as university programs designed to shape the next genera-
tion of legal professionals. Law schools and law school clinics can play a
particularly important role in inculcating rule of law values in emerging
professionals.
343
CREATING RULE OF LAW CULTURES

r Cultural and educational exchange programs can also play a key role,
especially (though not exclusively) for students and young professionals.
Time spent in other societies with strong rule of law traditions can encour-
age and inspire younger people to revitalize rule of law traditions at
home.


D. Giving People a Stake
In post-con¬‚ict settings with little previous rule of law tradition, rule of
law programs that engage only a tiny slice of the population are unlikely
to have much lasting impact. Interveners need to ¬nd ways to give large
numbers of people a stake in laws, legal institutions, and the institutions of
governance more broadly. This can be done both through programs that seek
to give ordinary people a sense of “ownership” over the law and through
the creation of concrete incentives to make use of law and legal institutions.
r Innovative outreach programs can help create a sense of shared ownership
if they solicit ideas for new laws and institutions from across a broad spec-
trum of society. Perhaps the most successful example of this (though not
from a post-intervention society) involves effort made by South Africa™s
¬rst postapartheid government to involve ordinary people in designing
the nation™s new constitution. Billboards, pop songs, and cartoons all
explained the constitution-creation process and urged people to write or
call special toll-free numbers with their thoughts on what the new con-
stitution should say. Millions of South Africans offered their ideas to the
constitutional assembly, and the inclusiveness of the process seems to have
paid off in the loyalty South Africans of all races feel toward their new
constitution.
r Programs that link access to justice, citizens education, and dispute medi-
ation to other kinds of development and antipoverty initiatives may offer
double bene¬ts, with each kind of work having a multiplier effect on the
other. First, they can create a concrete incentive for people to get involved
with organizations that do law-related work by linking the law-related
services to issues that have an immediate and clear effect on people™s
lives (such as agrarian reform or micro-credit programs). Second, com-
bining traditional community-level development programs with a focus
on advocacy, law, and policy can help ensure that development gains are
sustained by a hospitable political and legal climate (by property, con-
tract, and ¬nancial laws that ensure equitable and sustainable growth,
for instance).


E. Including Marginalized Groups
Traditional rule of law programs focus mainly on the “supply side” of the
law: judges, lawyers, law students, legislators, and so on. For durable and
344 CAN MIGHT MAKE RIGHTS?


broad-based rule of law cultures to be created, interveners need to move
beyond elites, but it is particularly important to focus on marginalized
groups, who will otherwise remain vulnerable to abuse “ and possibly dis-
affected enough to pose a signi¬cant threat to stability.

r Programs that seek to empower women are particularly important and can
have spillover effects on economic development and peace-related initia-
tives. Study after study suggests the crucial role of women in development
and peacebuilding; education for girls, for instance, has a strong multi-
plier effect on every other indicator. Women in post-con¬‚ict settings face
unique challenges; they may have been targeted for sexual violence before,
during, and after the con¬‚ict, and they usually have primary responsibil-
ity for children. They are often left out of post-con¬‚ict reforms and are
the last to bene¬t from new economic and political opportunities. In part
for these reasons, women are often more engaged participants than are
men in development and advocacy initiatives, and women are also more
likely than men to share bene¬ts they receive with broader communi-
ties. Law-related services that target women not only help protect women
from violence and marginalization but also make it more likely that the
programs will effect children and men.
r Rule of law programs should also seek to involve young people, particu-
larly young people who are undereducated and underemployed. The per-
centage of a population that consists of young men is a good predictor of
social con¬‚ict; when those young men are unemployed, they make prime
recruiting prospects for armed and criminal groups. Giving such young
men the tools to participate more constructively in social and political life
is an important part of creating rule of law cultures. (This issue should
be considered in tandem with the issue of giving people a stake in the
rule of law. Programs that offer economic bene¬ts for constructive civic
participation “ such as DDR programs “ can be effective when they offer
durable advantages to disaffected populations, but the very bene¬ts they
offer to the disaffected can increase resentment among other segments of
the population, who see bad actors apparently being “rewarded.” Innova-
tive programs should seek to spread the bene¬ts of involving marginalized
people throughout communities.)
r Minorities also need to be a prime focus of rule of law programs. Like
unemployed youths, minorities are extremely vulnerable; they may be
seen as expendable by elites from the majority and left out of any power-
sharing. In some post-con¬‚ict settings, actual or feared marginalization
and abuse drives minority groups into the role of spoilers. Targeting
minorities in rule of law programming helps give these otherwise vulnera-
ble groups the tools to protect themselves in ways that do not undermine
social stability.
345
CREATING RULE OF LAW CULTURES

F. Being Creative
Since the rule of law is a culture as much as a set of institutions and legal
codes, interveners need to be willing to use the tools of “culture” as well
as the tools of law and development. If the rule of law and its associated
institutions and rules are to capture the imagination and loyalty of citizens
in any society, interveners need to consider the role of the media and the role
of popular and folk culture.
r The media can help get messages across to broad audiences, and inter-
veners should build a media strategy into their planning. Depending on
the society, television, radio, and print media may play an important role
in educating and informing the public. At a minimum, enlisting the help
of the media can help ensure that the public is well informed about law-
related initiatives. It is critical, however, that any media messages be tar-
geted and culturally appropriate; clumsy media messages risk being either
irrelevant or damaging.
r For most Americans, cop shows and shows like “Judge Judy” or “West
Wing” shape and inform popular understandings of law and the politi-
cal process. Although these shows are “entertainment,” they also play an
important role in cultural transmission. Because interveners tend them-
selves to be legal or policy professionals, rather than scriptwriters, poets,
or singers, they rarely consider strategies involving popular culture. Yet in
many societies, the arts, including the popular arts, are critical means of
disseminating new ideas and forging cultural solidarity. Creative adver-
tising campaigns can also be effective ways to inform and inspire the
public.
r Rule of law promotion efforts may be most effective when they link “new”
or reformed legal institutions and rules to traditional dispute resolution
methods and narratives. This can help create a sense of continuity with
the past and engender loyalty to newer forms. It can also help keep “tra-
ditional” constituencies, such as tribal elders, from becoming disaffected
(and possibly being spoilers) by giving them an ongoing role in rule of
law programs.



CONCLUSION

Throughout this book, we have emphasized the dif¬culty of building the
rule of law in post-intervention societies. But despite the relatively disap-
pointing results of many rule of law efforts undertaken so far, there is some
empirical basis for believing that the approaches outlined above offer consid-
erable promise. In a relatively small-scale way, donors and interveners “ from
Bangladesh and Ecuador to Malawi and Nepal “ have begun to experiment
346 CAN MIGHT MAKE RIGHTS?


with programs that reach beyond elites and legal institutions and focus on
the long-term project of building deep cultural commitments to the rule
of law. Most of these experiments were not done in post-intervention or
post-con¬‚ict settings. Nonetheless, the evidence is that such “legal empow-
erment” programs, as commentator Stephen Golub has dubbed them, may
be a crucial complement to traditional rule of law programs.
CHAPTER NINE




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




Evaluating the effectiveness of rule of law assistance is complicated because
rule of law promotion efforts are tied to the fate of the larger post-
intervention reconstruction effort. Whether one de¬nes rule of law assistance
broadly, to encompass macro-political efforts such as forging the con¬‚ict set-
tlement blueprint, or narrowly, to include only justice-sector-related assis-
tance, failures in governance reforms, economic reconstruction, or security
measures will undermine or defeat even well-designed rule of law assistance
efforts.
But as noted, even when viewed in the most favorable light, rule of law
assistance has frequently yielded only very modest results. For example, in
a 2001 study, the U.S. General Accounting Of¬ce (GAO) reported on the
limited impact of eight years of U.S. aid intended to assist the states of
the former Soviet Union to develop sustainable rule of law institutions and
traditions. The report concluded that progress was slow, that conditions in
key states (Russia and the Ukraine) had deteriorated, and that the limited
results elsewhere in the former Soviet Union “may not be sustainable in
many cases.”1 The study correctly noted that “establishing the rule of law
is a complex and long-term undertaking in the new independent states” and
that impediments to success included “limited political consensus on the
need to reform laws and institutions,” “a shortage of domestic resources,”
and problems in the design and management of assistance programs by U.S.
agencies.2
Conditions in post-intervention states are typically far less hospitable to
rule of law efforts than those in the former Soviet Union. War-torn societies
commonly remain sharply divided. In such countries, it is usually a mis-
nomer to refer to “post-con¬‚ict reconstruction,” because the con¬‚ict that
1 GAO, Report to Congressional Requesters, Former Soviet Union: U.S. Rule of Law
Assistance Has Had Limited Impact and Sustainability, May 17, 2001, at 3, available at
http://www.gao.gov/new.items/d01354.pdf.
2 Id.

347
348 CAN MIGHT MAKE RIGHTS?


precipitated intervention often continues at lower levels of intensity.3 Infras-
tructure is shattered, spoilers contend for power and resources, economic
activity is minimal, security is lacking, neighboring states interfere for their
own ends, the populace lacks any experience with well-functioning legal
systems, and the judicial sector is in tatters. Moreover, local leaders often
oppose reforms and “seek to manipulate the law enforcement and judicial
systems to suppress opposition.”4 Thus, structural barriers independent of
the design and implementation of assistance programs often scuttle rule of
law efforts.
But de¬ciencies in the design and delivery of peace implementation pro-
grams in general, and rule of law aid in particular, are also partly to blame.
We have already identi¬ed some of the key problems associated with post-
con¬‚ict rule of law efforts. In Chapter 3, we highlighted the problems caused
by con¬‚ating the rule of law with the formal legal institutions characteristic
of mature democracies. In Chapter 4, we considered the dangers of poorly
designed post-con¬‚ict blueprints, and in Chapters 5 and 6, we identi¬ed
problems with existing approaches to restoring order and building effective
justice systems. Chapter 7 discussed the challenges associated with various
approaches to accountability for past atrocities. And in Chapter 8, we exam-
ined the critical importance of thinking creatively about building rule of law
cultures.
This chapter focuses on pragmatic and technical problems in post-con¬‚ict
recovery and rule of law assistance efforts. These problems include poor to
nonexistent overarching strategies for reconstruction, governance reform,
and rule of law delivery; inadequate assessment of post-intervention needs
and poor advance planning of rule of law and other programs; failure to
scale resources to need; a focus on short-term outputs instead of sustain-
able results; poor coordination among rule of law service providers, donors,
and other actors; insuf¬cient involvement of local actors in designing and
implementing rule of law reforms; a mismatch between the years and even
decades required to build a functioning rule of law system and the short
attention spans of interveners and donors; and inadequate understanding of
local cultures and institutions.
The United Nations, the UN Secretary-General, the Organization on Secu-
rity and Co-operation in Europe (OSCE), the European Union (EU), the
United States, the international ¬nancial institutions, and other key actors
have made considerable progress in recent years in identifying and starting

3 Cf. S/2000/809, para. 20, Report of the Panel on United Nations Peace Operations,
August 21, 2000 (hereinafter Brahimi Report) (noting that interveners must “work to
divert the un¬nished con¬‚ict . . . from the military to the political arena. . . .”), available at
http://www.itcm.org/pdf/s 2000 809.pdf.
4 Comments from the Department of State [on draft GAO Report at note 1 supra], March
16, 2001, available at http://www.gao.gov/new.items/d01354.pdf.
349
ENHANCING RULE OF LAW EFFORTS


to address some of these problems, especially as they pertain to the technical
aspects of peace implementation and rule of law delivery. But major hurdles
remain to be crossed.
As emphasized in earlier chapters, rule of law assistance is part and par-
cel of the larger post-intervention rebuilding effort. Just as the larger effort
will not succeed unless rule of law takes hold, so too will rule of law efforts
fail if the larger effort to restore peace and foster democratic governance
does not succeed. As Secretary-General Ko¬ Annan has observed, “[j]ustice,
peace, and democracy are . . . mutually reinforcing imperatives.”5 Accord-
ingly, this chapter examines several ways in which international actors can
strengthen post-con¬‚ict reconstruction efforts in areas critical to fostering
effective governments operating under the rule of law. In particular, the
chapter focuses on three key themes: ¬rst, the critical importance of ade-
quate advance planning and coordination of efforts among the multiple
actors attempting to provide governance and rule of law aid; second, the
necessity of matching resources and commitment to the nature and extent
of the problems to be confronted; and, third “ building on the discussion in
Chapter 8 “ the often neglected requirement of involving local actors con-
structively in the design and implementation of governance and rule of law
reforms.
In thinking about these themes, it is important to bear in mind that the
rule of law cannot be fostered in a vacuum. We argued earlier that building
an effective justice system requires a synergistic approach. For the same rea-
sons, the overall peace implementation effort must also be synergistic to be
effective. Failure in efforts to restore security, promote economic opportu-
nities, build effective governance institutions, or reconcile a deeply divided
population will likely doom even the best designed and delivered rule of law
programs.
We noted in earlier chapters that a synergistic approach is ends-based
and strategic. In the context of the overall peace implementation effort, that
means that a coherent, overarching strategy should guide post-intervention
planning, funding priorities, and efforts to involve local actors. The strat-
egy will necessarily vary from case to case, depending on the nature of
the problems to be addressed. In Bosnia, for example, the need to over-
come social fragmentation was the primary driver of the peace process and
post-intervention peace implementation efforts; in Sierra Leone, the need to
restore a secure environment proved the critical issue. But although each
case differs, in all cases the political blueprint adopted at the outset should
serve as the touchstone for all international actors in developing a coherent,
overarching, agreed strategy for the post-intervention period.

5 S/2004/616, Report of the Secretary-General, The Rule of Law and Transitional Justice in
Con¬‚ict and Post-Con¬‚ict Societies, August 23, 2004, at 1.
350 CAN MIGHT MAKE RIGHTS?


We also argued earlier that a synergistic approach is adaptive; it builds
on the cultural, human, and other resources already in place and adapts
as conditions change. The political blueprint adopted at the outset of post-
intervention rebuilding efforts almost inevitably re¬‚ects the social, cultural,
political, and material dynamics in play on the ground to some extent, but
it is often skewed by the political interests of the interveners and the need
to placate the leaders of the principal warring factions. Moreover, even if
the political blueprint is well designed initially, efforts to implement the
blueprint must continually be adjusted and updated. As we have emphasized,
post-intervention reconstruction efforts are not politically neutral. Funding
decisions, institutional development, involvement of particular local part-
ners and all other aspects of peace implementation necessarily favor some
individuals and groups over others. Interveners must be ¬‚exible enough to
adjust repeatedly to fast-changing local conditions when planning, funding,
and working with local partners on implementing assistance programs gen-
erally and rule of law programs in particular.
Finally, we have argued that a synergistic approach is systemic. Interveners
must appreciate how the work of different international actors in¬‚uences the
overall effort. Too often, international actors with different mandates and
different interests duplicate or actively undermine each other™s efforts. Just as
the components of an effective judicial system must work in a complementary
and mutually reinforcing way, so too should the various components of the
overall peace effort work together for any of them to be effective. Thus,
efforts to demobilize combatants, for example, must dovetail with efforts
to jump-start the local economy and provide new jobs; similarly, building a
new army requires simultaneous support for an effective defense ministry to
provide civilian control over that army.


I. PLANNING AND COORDINATION

In recent years, there has been “an explosion of the number of actors
involved in various aspects of con¬‚ict management. . . . ”6 In many cases,
the result is “a veritable ˜circus atmosphere™ of UN agencies, international
organizations, NGOs, and individual donor governments all engaged in the
often uncoordinated monitoring of human rights, policing assistance, judicial
rehabilitation, investigating war crimes, training police, and administering

6 Bruce Jones, The Challenges of Strategic Coordination, in Ending Civil Wars: The Imple-
mentation of Peace Agreements (Stephen Stedman, Donald Rothchild, & Elizabeth
Cousens, eds., 2002), at 88, 102. Jones notes that the proliferation stems from the creation
of post-con¬‚ict units in multilateral and bilateral aid agencies, the creation of emergency
response units in development and technical assistance agencies, and the growing number
of NGOs involved in post-con¬‚ict reconstruction. Id., at 104.
351
ENHANCING RULE OF LAW EFFORTS


prisons.”7 The problem repeats at the national level. In the United States, for
example, “dozens” of agencies participate in post-con¬‚ict security, recon-
struction, and rule of law efforts.8 Duplication of effort, confusion, com-
petition for resources, gaps in assistance, mixed messages, and lost time
commonly follow. Worse, division among the international actors creates
opportunities for spoilers to play different international actors off against
each other, and even derail assistance efforts.9
These problems exist at all levels of peace implementation efforts, includ-
ing those aimed at fostering the rule of law. Country studies conducted
for a King™s College review of peace operations “emphasise the lack of a
coherent strategy for the development of rule-of-law institutions and insuf¬-
cient planning for this, even when the mandate seemed clear.”10 As a result,
recent years have witnessed recurring calls for better planning and coordi-
nation of peace implementation and rule of law promotion efforts. The U.S.
General Accounting Of¬ce, for example, noted that thirty-two reports on
peacekeeping operations in sixteen countries “came to similar conclusions
about the need for comprehensive transition planning in complex emergency
situations.”11 The Brahimi Report called for strengthening the UN™s strate-

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