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gic planning and coordination capacity.12 Similarly, the Final Report of the
Bi-Partisan Commission on Post-Con¬‚ict Reconstruction identi¬ed strate-
gic planning as a crucial “enabler” of post-con¬‚ict reconstruction success
and urged the U.S. government to create its own standing comprehensive
interagency planning process.13 The Secretary-General™s strategy for effec-
tive peacekeeping transitions, endorsed by the Security Council in February
2001, likewise makes planning and coordination a central goal, and the new
UN Peacebuilding Commission represents an effort to put planning front
and center in future peacebuilding missions.
Considerable progress has been made in responding to these calls
for improved planning and coordination, along many fronts. But many


7 The Stanley Foundation, Post Con¬‚ict Justice: The Role of the International Community
1997, at 7.
8 Scott Feil, Building Better Foundations: Security in Post Con¬‚ict Reconstruction, 25 Wash.
Q. 97, 101 (2002).
9 See Jones, supra note 6, at 8.
10 Con¬‚ict, Security and Development Group, King™s College London, A Review of Peace
Operations: A Case for Change, Overall Introduction and Synthesis Report, March 10,
2003, at 12 para. xx, available at http://ipi.sspp.kcl.ac.uk/rep002/index.html (hereinafter
Review of Peace Operations).
11 GAO Report, GAO-03“1071, U.N. Peacekeeping: Transition Strategies for Post Con¬‚ict
Countries Lack Results-Oriented Measures of Progress, September 2003, at 8, available at
http://www.gao.gov/new.items/d031071.pdf (hereafter Transition Strategies).
12 See Brahimi Report, supra note 3, at 12.
13 Play to Win, Final Report of the Bi-Partisan Commission on Post-Con¬‚ict Reconstruction,
January 2003, at 8, available at http://www.ausa.org/PDFdocs/PCRFinalReport.pdf.
352 CAN MIGHT MAKE RIGHTS?


post-con¬‚ict peace implementation and rule of law promotion efforts remain
fragmented and correspondingly ineffective.
The basic elements of effective planning are simple in theory and apply
both to the larger peace implementation effort and to its component parts,
including rule of law assistance. These elements include the following:
r At the outset, the principal interveners, working with local partners,
should develop a shared assessment of needs, based on what is required
to ful¬ll the political blueprint for transition.
r The common needs assessment should form the basis for an overarching
strategy that will permit the multiplicity of international actors involved
in the post-intervention phase to work together rather than at cross-
purposes.
r The lead international actors should reach agreement on the key program
activities needed to carry out the overall strategy and should agree on
coordination mechanisms and a division of responsibilities that should
be “planned by and cohere around sectors, themes and/or geographic
areas . . . rather than on the basis of agency mandates solely.”14
r To the extent possible, all key international and local stakeholders should
be included or at least consulted in planning efforts as early and as fully as
feasible. Planning must from the outset include strategies for building local
capacity and fostering local ownership of post-intervention reconstruction
efforts.
r The lead actors should set timetables for achieving critical objectives, with
agreed interim benchmarks for reaching post-intervention goals. Progress
should be systematically reviewed on a regular basis, and planning should
then be adjusted as necessary.
r Steps should be taken to ensure that consistent, multiyear funding is avail-
able as needed to carry out various program objectives in a timely and
appropriately sequenced fashion.

Although these principles of effective planning are simple to state, they
are exceptionally dif¬cult to carry out. We consider below some of the obsta-
cles to effective planning and coordination, and possible improvements to
international capabilities in this area.

A. Obstacles to Effective Planning
The obstacles to effective planning and coordination are many and varied.
Some are avoidable and subject to control or at least mitigation through
development of improved planning processes and institutions. Others are
structural, inherent in the nature of the peacebuilding enterprise, and must
be compensated for to the extent possible.
14 Report of the UNDG/ECHA Working Group on Transition Issues, para. 43, February 2004.
353
ENHANCING RULE OF LAW EFFORTS


The sheer proliferation of actors noted above, though it brings a wide
variety of expertise and capabilities to the post-intervention reconstruction
effort, complicates planning and coordination. Each of the relevant actors
operates on the basis of its own mandate, interests, and funding sources,15
rendering cooperation dif¬cult. Disagreements over objectives and methods,
bureaucratic inertia, political rivalries, and competition over turf exacerbate
the problem. Even when the actors involved recognize the need for planning
and coordination, political interests and competition, rather than compara-
tive advantage, often determine which state or organization takes the lead
on a given issue.
Peace operations continue to be organized hastily and on a largely ad hoc
basis, in response to crises, making comprehensive advance planning dif¬-
cult. Rule of law promotion efforts suffer in particular because, despite broad
recognition of their importance, rule of law still often appears in mission
planning almost as an afterthought.16 The Brahimi Report recommended a
doctrinal shift in the UN™s approach to rule of law, urging commitment to
and planning for a complete rule of law package. But despite some improve-
ments in this area, pressing needs, most notably control of belligerents, tend
to take priority over long-term needs such as rule of law reform.
In addition, building rule of law norms and institutions requires planning
and coordination across different sectors of peace implementation opera-
tions. Security, administration of justice, human rights, economic develop-
ment, and public administration are all interlinked, but different agencies
and organizations tend to concentrate on one or the other task, without
fully appreciating the extent to which progress in one area is conditioned on
progress in another. Efforts to restructure the police and security services, for
example, commonly outpace the longer-term task of reforming or rebuilding
courts and prisons. In Haiti, for example, early successes in police retraining
were undermined and eventually defeated by inadequate progress in judicial
and governance reforms. Similarly, in East Timor, efforts to train and equip
a new police service initially foundered because of overcrowded prisons,
poorly equipped courts, and a shortage of judges and defense counsel.
Even when comprehensive mission planning is attempted, it must neces-
sarily be context sensitive; each mission takes place in a different country
at a different stage in that country™s con¬‚ict cycle. Some international orga-
nizations and states now attempt to do “pre-post-con¬‚ict planning” “ the
World Bank, for example, utilizes “watching briefs” to pave the way for post-
con¬‚ict planning “ but interveners usually only begin to understand clearly
what is needed and who is needed to do it once the mission has begun.17

15 Review of Peace Operations, supra note 10, at 11.
16 Id., at 12 para. xxi.
17 Id., at 21 para. 27.
354 CAN MIGHT MAKE RIGHTS?


Thus, post-con¬‚ict intervention inevitably involves a “period of planning
˜on the go™ on the one hand, and regular and major revision of objectives on
the other.”18
Unfortunately, making these adjustments appropriately assumes that
international actors can reliably determine the extent of progress toward
meeting rule of law and other mission objectives. But most post-con¬‚ict
assistance providers, including most rule of law service providers, lack objec-
tive measures to make such assessments. The UN transition strategy for
peace implementation calls for “developing objectives, linked to the country
conditions sought, and measures of progress toward achieving those con-
ditions,” an outgrowth of a General Assembly decision in 2000 to adopt
results-based budgeting.19 The objectives at issue include developing institu-
tions that ensure the rule of law. But despite progress in this regard, “most
measures are tasks and outputs rather than measures of underlying con-
ditions in the country that the peace operation is to improve.”20 In East
Timor, for example, the objective of increasing the ability of the national
police to provide security centered on meeting a particular output “ 2830
newly trained of¬cers. But the objective was determined using “a standard
European police-to-population ratio” and based on “outdated population
estimates.”21 Moreover, it did not measure quality. Riots in the capital city
forced the United Nations to revise its training procedures and increase the
number of police sought by 500.22 Similarly, in Sierra Leone, the reestablish-
ment of courts was used as a measure of progress toward restoring the rule
of law, without application of “any systematic measures or criteria, such as
the ability of those ¬ling suit to obtain satisfactory resolution of their cases
within a reasonable period of time.”23
Considerable progress in developing useful indicators has been made in
recent years. In fact, as the World Bank notes, “there has been a virtual
explosion of datasets measuring quality of institutions, governance and cor-
ruption.”24 World Bank researchers, for example, have developed a rule of
law index that seeks to measure “perceptions of the incidence of both violent
and non-violent crime, the effectiveness and predictability of the judiciary,
and the enforceability of contracts,” to assess “the success of a society in
developing an environment in which fair and predictable rules form the


18 Id.
19 Transition Strategies, supra note 11, at 10.
20 Id., at 30.
21 Id., at 31.
22 Id., at 31“32.
23 Id., at 32.
24 World Bank Group, Governance Data: Web-Interactive Inventory of Datasets and Empirical
Tools, available at http://www.worldbank.org/wbi/governance/govdatasets/ (covering the
period from 1996“2004).
355
ENHANCING RULE OF LAW EFFORTS


basis for economic and social interactions.”25 But much remains to be done
to develop, test, and put such indicators into practice in ongoing rule of law
assistance efforts.
Planning efforts must also deal with the need to sequence and priori-
tize post-intervention reconstruction efforts based on urgent needs, while
at the same time working in a synergistic way to make mutually rein-
forcing improvements. Until recently, post-intervention planning assumed
an essentially linear movement from a stabilization phase to an institution
building/transformation phase to a period of consolidation, with each phase
having its own recovery priorities.26 This view has come under increasing
criticism, as some experts argue that “the dynamics of con¬‚ict are discon-
tinuous and sequential approaches are far less effective than ˜joined up™
strategies that combine all policy tools in a coherent package of induce-
ments and restraints.”27 In theory, the “joined up” approach is preferable
and more consistent with the synergistic approach advocated in this book.
As a practical matter, however, interveners will ¬nd it necessary to prioritize
and sequence, given limits on resources, personnel, and local capacity. At
the same time, decisions on sequencing and priorities must be made collec-
tively and conform to an overall strategy, so that priorities will be chosen
and implemented in ways that will render them mutually reinforcing; oth-
erwise, progress on one front will be stymied (and resources wasted) when
progress languishes on another front. When choices have to be made because
of budget constraints, limited local absorptive capacity, or some other rea-
son, priority should go to programs intended to advance the primary goals
of the post-con¬‚ict blueprint, even if longer-term development needs must
temporarily take second place. Reinsertion programs for ex-combatants, for
example, may have to take priority over other employment projects. Cer-
tainly, achieving blueprint goals should take priority over the pet projects of
particular donors.
Despite the various obstacles summarized above, the need for improved
planning and coordination is widely recognized, and considerable progress is
being made. There are now many different planning and coordination tools
in use or under consideration. Which ones may prove helpful, or essential,
depend on the interveners involved and on the conditions in the country

25 See D. Kaufmann., A. Kraay, & M. Mastruzzi, World Bank, World Bank Policy Research
Working Paper 3106, Governance Matters III: Governance Indicators for 1996“2002, 2003,
at 4, available at http://www.worldbank.org/wbi/governance/pubs/govmatters2001.htm.
26 For a useful list of priorities divided by phase, see Kevelitz et al., Practical Guide to
Multilateral Needs Assessments in Post-Con¬‚ict Situations, August 2004, section 2.3,
available at http://www.undp.org/documents/4937 - PCNA -PracticalGuide to Multilate-
ral Needs Assessments in Post-Con¬‚ict Situations.pdf.
27 Robert Picciotto, Charles Alao, Eka Ikpe, Martin Kimani, & Roger Slade, Striking a New
Balance: Donor Policy Coherence and Development Cooperation in Dif¬cult Environments,
January 13“14, 2005, at 6, available at http://www.oecd.org/dataoecd/31/62/34252747.pdf.
356 CAN MIGHT MAKE RIGHTS?


at issue. In general, the more dif¬cult the implementation environment, the
more important planning and coordination are (and the more dif¬cult they
are to do). Successful coordination usually requires both “a high degree of
international commitment and a rough correspondence of interests of the
major powers.”28 In Bosnia, for example, despite a relatively high degree
of international commitment and various international coordinating mech-
anisms, implementation was “weakened by competing strategies among key
implementing actors and contributing governments, these driven as much
by bureaucratic and domestic considerations as by debate over the best way
to consolidate peace.”29 Thus, even though the Dayton Accords assigned
responsibility among different agencies for implementation of key tasks, and
despite establishment of the Of¬ce of the High Representative to provide
strategic and operational coordination, the absence of a common strate-
gic vision among the principal interveners meant that coordination worked
mostly at the margins.30 Similarly, in Kosovo, there was considerable over-
lap and sometimes signi¬cant tension between UN and OSCE judicial and
police reform efforts.
Unfortunately, there is no simple and agreed model for planning and
coordination of peace implementation and rule of law promotion. Indeed,
no single model is appropriate for all cases. For example, the use of the
Kosovo operation as a template for planning the East Timor mission gen-
erated substantial criticism for neglecting the unique aspects of the latter
and ignoring the wishes of the Timorese.31 Options for planning and coor-
dination range from friends groups to lead state coordination to integrated
missions. Whichever model is chosen, the person or entity selected to lead
must actually be given the resources and authority to enforce planning and
coordination decisions,32 a dif¬cult task when states and local actors with
different interests and priorities are involved.

B. Enhancing Interveners™ Capacity for Planning and Coordination
Although there is now a broad consensus that the myriad states and interna-
tional organizations engaged in post-con¬‚ict reconstruction and rule of law
promotion should follow a coherent, agreed plan, there is little agreement
on which actor should take the lead in organizing and implementing that
plan. The obvious candidate is the United Nations, which by virtue of its
28 Jones, supra note 6, at 90.
29 Id., at 91 (quoting Elizabeth Cousens).
30 Id.
31 Review of Peace Operations, supra note 10, at 19 para. 16.
32 See Stanley Foundation report, Laying a Durable Foundation for Post-Con¬‚ict Soci-
eties, June 2002, at 23, available at http://www.stanleyfoundation.org/reports/UNND02.pdf
(coordination “means empowering the individual with the authority and resources to force
the UN specialized agencies and others to rise above the demands of their respective bureau-
cratic interests”) (hereinafter Durable Foundation).
357
ENHANCING RULE OF LAW EFFORTS


broad representation carries a legitimacy and a reputation for impartiality
that no other actor can match. The United Nations also “brings a range
of capacities across the spectrum of post-con¬‚ict assistance that cannot be
found elsewhere.”33 For these reasons, the United Nations does often play a
lead planning and coordinating role. In some cases, however, UN missions
lack the political support, personnel, funding, organization, and military
capabilities necessary to play an effective lead role and must be backed by
a lead state willing and able to supply what a particular UN mission lacks.
In other cases, a lead actor, most notably the United States, takes the lead
role itself, leaving the United Nations to play a supporting role. In still other
cases, a coalition of international actors shares the planning and coordina-
tion functions. Whichever model is followed, there is substantial room for
improvement, despite considerable progress in recent years.
The Brahimi Report emphasized the importance of improving the UN™s
strategic planning and coordination capacity. Among other things, it called
for creation of a “professional system in the Secretariat for accumulating
knowledge about con¬‚ict situations, distributing that knowledge ef¬ciently
to a wide user base, [and] generating policy analyses and formulating long-
term strategies.”34 More importantly, the report called for treating peace-
keeping as a core activity of the United Nations, with funding to come
through the regular budget of the organization, which would provide for
a predictable baseline budget and permit advance planning for “potential
contingencies six months to a year down the road.”35 Further, the report
called for the creation of Integrated Mission Task Forces (IMTFs), with staff
seconded from throughout the UN system, “to plan new missions and help
them reach full deployment. . . . ”36 The report also called for a variety of
structural adjustments and other reforms, such as new standby arrange-
ments for military and civilian experts, new information technologies, and
stronger merit-based hiring.
Some of these reforms have been implemented.37 The United Nations
has consolidated peacekeeping responsibilities in the Department of Peace-
keeping Operations (DPKO), increased its staff to permit better planning,
required planners to “identify objectives, tasks to be undertaken, resources
required, expected timetables, and criteria for measuring success,” begun
using IMTFs to plan operations, and created a best practices unit in DPKO

33 Id., at 22.
34 Brahimi Report, supra note 3, at 12. The proposed system was to be created as the ECPS
Information and Strategic Analysis Secretariat (EISAS). Id.
35 Id., at 33.
36 Id., at xiii, 34“37.
37 For a review of progress on various Brahimi Report reforms, see William J. Durch, Victoria
K. Holt, Caroline R. Earle, & Moira K. Shanahan, The Brahimi Report and the Future of UN
Peace Operations 2003, at 18, available at http://www.stimson.org/fopo/pubs.cfm?ID=90.
358 CAN MIGHT MAKE RIGHTS?


to identify lessons learned from past operations and apply them to future
operations.38 The United Nations also established a small Criminal Law
and Judicial Advisory Unit in the Department of Peacekeeping Operations
to help create comprehensive rule of law transition strategies and created a
Rule of Law Focal Point Network at UN headquarters to improve coordina-
tion and support for rule of law aspects of peace operations. In addition, the
United Nations has increased its efforts to coordinate transition planning
with other international organizations and participating states.39 Although
most of these reforms deal with planning and coordination in New York,
some reforms focus on planning and coordination in the ¬eld. For example,
the Secretary-General created the position of Deputy Special Representative
of the Secretary-General to “ensure coordination of security and economic
reform efforts” in the ¬eld.40
But many proposed reforms have not been implemented, or have achieved
only “mixed results,” and operational plans are not yet systematically
reviewed and adjusted.41 Thus, planning and coordination continue to be
incomplete and sometimes ad hoc. The problem stems in part from the reluc-
tance of some states, for a variety of domestic political reasons, to give the
United Nations the resources necessary for comprehensive planning. In var-
ious ways, the Secretariat has sometimes been set up for failure, when it
has been given ambitious mandates and inadequate support.42 In part, the
problem stems from the sheer multiplicity of actors involved in post-con¬‚ict
transitions, each with their own mandates and priorities. And in part, the
problem stems from the structure, organization, and nature of the United
Nations itself, an organization that for many reasons still lacks “a real cul-
ture of planning.”43 Moreover, as a Stanley Foundation report put it,

Simply put, the United Nations is unable to capitalize on its coordinating potential
because the UN system is not designed to coordinate well. There are countless struc-
tural constraints created by the decentralized nature of the UN system, including
numerous component parts with overlapping mandates, separate funding sources
and governing boards, and different national constituencies. By its very nature, the
intergovernmental system is cumbersome and weighed down by inertia, leading to a
culture of indecisiveness and resistance to reform.44
38 Transition Strategies, supra note 11, at 11. At the same time, “the level of in-house resources
and personnel dedicated to planning continues to be inadequate.” Review of Peace Opera-
tions, supra note 10, at 18 para. 14.
39 Transition Strategies, supra note 11, at 11.
40 Id., at 17.
41 Espen Eide, Anja Kaspersen, Randolph Kent, & Karen von Hippel, Report on Integrated
Missions: Practical Perspectives and Recommendations, May 2005, at 21, available at
http://pbpu.unlb.org/pbpu/library/Report%20on%20Integrated%20Missions%20May%
202005%20Final.pdf (noting that IMTFs “have been used with mixed results thus far”).
42 Durable Foundation, supra note 32, at 30.
43 Eide, supra note 41, at 20, available at http://pbpu.unlb.org/pbpu/library/Report%20on%
20Integrated%20Missions%20May%202005%20Final.pdf.
44 Durable Foundation, supra note 32, at 23.
359
ENHANCING RULE OF LAW EFFORTS


In the ¬eld, the United Nations has experimented with various coordinat-
ing structures. In 1999, the General Assembly adopted Generic Guidelines
for Strategic Frameworks to facilitate coordination and identify priorities
among UN agencies and other actors involved in post-con¬‚ict reconstruc-
tion and aid work. The guidelines “outline criteria, process, and institutional
arrangements for the elaboration and prioritisation of political, assistance
and protection objectives including the advancement of human rights. . . . ”45
The guidelines direct the Special Representative of the Secretary-General
(SRSG) and the UN Resident Coordinator to chair a set of coordinating
bodies designed to bring together UN agencies, donor governments, other
international organizations, NGOs, and national authorities to develop and
work toward shared objectives and to “ensure that speci¬c programmes and
projects adhere to common objectives and priorities.”46
The strategic framework was ¬rst applied in Afghanistan, but became
principally a body for aid coordination given the conditions then present in
that country.47 A second strategic framework experiment was then attempted
in Sierra Leone, but it fared no better. A year of effort “produced little
more than a general statement of existing coordination problems and of the
need for greater links between the political, development, and humanitarian
coordination mechanisms.”48 This is not to say there were no coordination
mechanisms operating. At one point there were no fewer than four “distinct
UN coordination structures in Sierra Leone, none of which bore any formal
or substantive relationship to the others.”49 UN experts came to conclude
that the strategic framework was too “cumbersome” to “generate serious
collaboration or ¬‚exible coordination” and did “little to actually empower
lead coordinators such as the SRSG.”50
Dissatisfaction with the strategic framework model, as applied in Sierra
Leone, led the United Nations to move to the integrated mission model.
An early version of the model was used ¬rst in the UN Mission in Kosovo
(UNMIK), deployed in May 1999.51 In Kosovo, the United Nations sought
to avoid the coordination problems experienced in Bosnia. The challenge
was substantial. Departing Serb forces left the province in an administrative
and security vacuum and forced the interveners to assume all aspects of
public administration. The United Nations had little advance notice of the
primary role it was eventually to play. It was not until Security Council
Resolution 1244 assigned NATO the lead on military matters, leaving all
45 Generic Guidelines for a Strategic Framework Approach for Response to and Recovery
from Crisis, para. 4, available at http://coe-dmha.org/PKO/Philippines2003/plenbrfs/day1/
unstrat.pdf.
46 Id., at para. 19.
47 Jones, supra note 6, at 106.
48 Id., at 107.
49 Id.
50 Id.
51 Id.
360 CAN MIGHT MAKE RIGHTS?


civilian responsibilities for the United Nations, with assistance from the
OSCE and the European Union, that the scope of the UN™s responsibilities
became clear.52 To achieve a uni¬ed international effort, it was essential
to devise mechanisms to coordinate the work of these major international
organizations, while leaving each suf¬cient ¬‚exibility to carry out its
assignments.53
To meet the challenge, the United Nations established an integrated mis-
sion, in which the SRSG headed a joint structure in which each of the prin-
cipal organizations (the UN, the EU, the OSCE, and UNHCR) took primary
responsibility for one pillar: UNHCR took pillar I (humanitarian assistance);
the UN took pillar II (civil administration, police, and justice); OSCE took
pillar III (institution-building, democratization, human rights, and rule of
law); and the EU took pillar IV (reconstruction). This division of respon-
sibility had more to do with international politics than with the compara-
tive advantage of each organization,54 and encountered some problems in
application, but nonetheless constituted an improvement over past practice.
Each organization assigned its mission head to serve as a deputy SRSG, thus
permitting the SRSG to “manage the overall mission structure” and, in the-
ory, “to ensure policy coherence and an effective division of labor. . . . ”55
Inevitably, the tasks involved in each pillar overlapped. Thus, for example,
there could be no neat division between the UN™s law and order responsi-
bilities and NATO™s security role.56 As a result, the pillar structure “proved
to be unwieldy when tackling cross-cutting issues,”57 though some progress
was made in sorting out responsibilities through interpillar negotiations as
time passed.58 The effectiveness of this structure, and subordinate coordi-
nating entities established later, varied depending on the performance of the
senior of¬cials from each organization and their willingness to respond to
the coordination efforts of the SRSG and his deputy.59 Moreover, the failure
of the interested states to reach agreement on an end-state for Kosovo exac-
erbated policy differences among the interveners.60 Overall, the integrated
mission structure demonstrated “a fairly good ability to coordinate technical
52 At the outset, the general assumption was that the OSCE would take the lead role, in part
because of dissatisfaction on the part of key states over the UN™s performance in Bosnia. See
Kings College, London, A Review of Peace Operations: A Case for Change, Kosovo Report,
paras. 17 & 21, available at http://ipi.sspp.kcl.ac.uk/rep005/index.htm (hereinafter Kosovo
Report). It was only after the OSCE was ruled out by Russia, and the EU by the United
States, that the United Nations was assigned primary responsibility. Id. para. 22.
53 Id.
54 Jones, supra note 6, at 108.
55 Id., at 109.
56 Id.; see also Kosovo Report, supra note 52.
57 Kosovo Report, supra note 52, para. 26.
58 Jones, supra note 6, at 109.
59 Id., at 110.
60 Id.
361
ENHANCING RULE OF LAW EFFORTS


policy differences between the implementing organizations, but a far more
constrained capacity to coordinate overall strategic questions.”61
A similar structure was utilized in East Timor. As in Sierra Leone, UN
planning initially was premised on an unrealistic assumption, that a vote
for autonomy would not trigger large-scale violence.62 The Security Council
did not even authorize planning for a transitional administration until an
Australian-led coalition of the willing organized to restore order.63 As a
result, the United Nations had only a few weeks to plan for conditions
much worse than originally anticipated. Planning was further hampered by
disagreements between the UN™s Department of Peacekeeping Operations
and its Department of Political Affairs and by uncertainty over whether the
mission was to be peacekeeping or peacebuilding, problems that plagued the
mission throughout its existence.64
Formally, the structure for planning and coordination on the ground
resembled that adopted in Kosovo. It consisted of four pillars: (1) civil admin-
istration, (2) economy and infrastructure, (3) humanitarian, and (4) peace-
keeping. But the effort to transplant the Kosovo model was not fully suc-
cessful. Key aspects of the pillars™ various goals were not adequately de¬ned.
It was unclear, for example, whether the civil administration pillar was to
form the nucleus of an East Timorese government. Moreover, key differences
between East Timor and Kosovo were overlooked; for example, the mis-
sion did not plan initially for a customs service, because unlike East Timor,
Kosovo, as a nonsovereign entity, did not need one.65 Perhaps most impor-
tant, the structure did not provide adequately for a role for East Timorese
in transition planning and implementation.
Problems in planning and coordination clearly impeded efforts to restore
the rule of law in East Timor. “Pre-mission planning on justice issues was
minimal at best.”66 No comprehensive assessment of the legal system™s needs
was undertaken. Even after UNTAET became fully operational and the
immediate humanitarian crisis receded, UNTAET did not generate a com-
prehensive strategy for legal reform. The repercussions were numerous and
lasting. For example, UNTAET moved quickly to put in place new police
and judges but failed to move forward simultaneously with the creation of
new prisons and courts, prerequisites for the effective functioning of the
police and judges. At times, the lack of a comprehensive strategy, and the
weakness of coordination, created con¬‚icts in implementation efforts. For

61 Id., at 110“111.
62 See Kings College, London, A Review of Peace Operations: A Case for Change, East Timor
Report, para. 11, available at http://ipi.sspp.kcl.ac.uk/rep006/s01.html.
63 Id., at para. 18.
64 Id., at para. 21.
65 Id., at para. 28.
66 Id., at para. 222.
362 CAN MIGHT MAKE RIGHTS?


example, World Bank efforts to help villagers form local governing councils
operating under traditional law clashed with UNTAET efforts to strengthen
central government authority and apply consistent regulations throughout
the country.67
Thus, although the integrated mission structure in East Timor helped
avoid some of the planning and coordination problems that have plagued
previous missions, many such problems continued to obstruct achievement of
UNTAET™s goals. The fault lies less in the planning and coordinating struc-
ture itself (and the United Nations has continued to re¬ne the integrated
mission concept in subsequent missions) than in a host of other considera-
tions. These include the reluctance of Security Council members and other
key states to plan for the kind of mission ultimately needed, in part for
fear of offending Indonesia; bureaucratic rivalries within the UN system and
between the United Nations and other international organizations; a lack of
resources; the variable quality of the personnel involved, particularly those
with key operational responsibilities; and insuf¬cient understanding of the
politics and culture of East Timor itself. Such problems can at best be mit-
igated but not solved by planning and coordination mechanisms, however
well designed.
In March 2005, the UN Secretary-General offered an ambitious proposal
to plug what he called the “gaping hole in the United Nations institutional
machinery” that precluded it from effectively addressing “the challenge of
helping countries with the transition from war to lasting peace.”68 Modifying
an earlier proposal offered by the High Level Panel on Threats, Challenges
and Change, the Secretary-General urged UN member states to create an
intergovernmental Peacebuilding Commission and a Peacebuilding Support
Of¬ce with a dedicated rule of law unit within the UN Secretariat. The
proposal is designed to address many of the speci¬c problems noted above.
As the Secretary-General put it,

A Peacebuilding Commission could . . . improve United Nations planning for sus-
tained recovery . . . ; help to ensure predictable ¬nancing for early recovery activi-
ties, in part by providing an overview of assessed, voluntary and standing fund-
ing mechanisms; improve the coordination of the many post-con¬‚ict activities of
the United Nations funds, programmes and agencies; provide a forum in which the
United Nations, major bilateral donors, troop contributors, relevant regional actors
and organizations, the international ¬nancial institutions and the national or tran-
sitional Government of the country concerned can share information about their
respective post-con¬‚ict recovery strategies, in the interests of greater coherence; peri-
odically review progress towards medium-term recovery goals; and extend the period
of political attention to post-con¬‚ict recovery.69

67 Transition Strategies, supra note 11, at 29.
68 In Larger Freedom: Towards Development, Security, and Human Rights for All, Report
of the Secretary-General, UN Doc. A/59/2005, para. 114, March 21, 2005, available at
http://www.globalpolicy.org/reform/initiatives/annan/2005/followupreport.pdf.
69 Id., at para. 115.
363
ENHANCING RULE OF LAW EFFORTS


An effective peacebuilding commission would substantially improve exist-
ing efforts to set priorities, mobilize resources, and coordinate post-con¬‚ict
planning and implementation. It would provide strategic-level planning and
coordination in much the same way that integrated missions are to provide
¬eld-level planning and coordination. Such a commission would, at least
in theory, have the power and resources to force coherence in post-con¬‚ict
planning and to ensure that resources are matched to needs in a timely and
adequate fashion. The commission would “support “ and not attempt to
replace “ effective country-level planning.”70
But it is not at all clear that the Peacebuilding Commission as created
by the Security Council and the General Assembly in December 2005 can
achieve the objectives set for it. The proposed commission was established as
an intergovernmental advisory body, with a core membership of thirty-one
states, including key Security Council members, donors, troop contributors,
and others. When addressing country-speci¬c con¬‚icts, the affected country,
its neighbors, and relevant donors and troop contributing countries would
be invited to participate as well. The commission is therefore likely to be
large, divided by internal politics, and cumbersome in operation.
Moreover, the commission can only offer advice to the Security Council
and others; it is not itself a decision-making body. Not only does it lack
authority over its members or other states, it “has no executive management
responsibility to assure the adherence of the multitude of UN agencies, inter-
national institutions, bilateral agencies, national and local agencies, and civil
society organizations to an agreed-upon coherent and effective post-con¬‚ict
plan.”71 Thus, its in¬‚uence will be determined by the weight powerful states,
international organizations, relief agencies, and others choose to place on its
advice. Furthermore, the quality of that advice may itself be limited by the
UN™s reluctance to provide appropriate staff support. The Secretary-General
requested twenty-one new positions to staff the new commission, a number
barely adequate to “ful¬l[l] the PBC™s basic secretarial and monitoring needs,
let alone provide training to ¬eld staff, rigorous analysis of peace-building
trends and lessons learned . . . and much-needed substantive and logistical
support to ¬eld operations.”72 But the request was turned down on bud-
getary grounds; instead, the Secretariat is supposed to support the new com-
mission from existing Secretariat staff.73


70 A/59/2005/Add. 2, Addendum, In Larger Freedom, supra note 68, para. 6.
71 Katherine Andrews, New UN Peacebuilding Commission Requires Resources and Author-
ity to be Effective, available at http://www.refugeesinternational.org/content/article/detail/
7634/.
72 See Richard Ponzio, The Creation and Functioning of the UN Peacebuilding Com-
mission, November 2005, at 6, available at http://www.saferworld.org.uk/publications/
Peace%20Builidng%20rep%20Nov05.pdf.
73 See UN OKs New Peacebuilding Commission, Associated Press, December 20, 2005, avail-
able at http://www.globalpolicy.org/reform/topics/pbc/2005/1220oks.htm.
364 CAN MIGHT MAKE RIGHTS?


Further, the Peacebuilding Fund, created along with the commission and
intended to ¬nance post-con¬‚ict reconstruction, depends entirely on volun-
tary contributions. The high-level panel recommended a fund “at the level
of at least $250 million that can be used to ¬nance the recurrent expendi-
tures of a nascent Government, as well as critical agency programmes in the
areas of rehabilitation and reintegration.”74 Even this level of funding would
be “woefully inadequate,”75 and it is not clear states will provide funding
even at this level. Although a well-designed and supported Peacebuilding
Commission might do much to improve intergovernmental planning and
coordination, the Peacebuilding Commission as formed may do relatively
little beyond serve as a forum for discussion.
Just as a strong coordinating and planning mechanism is needed at the
international level, similar mechanisms are needed at the national level to
improve post-con¬‚ict response capabilities. The unfortunate U.S. experi-
ence in Somalia, in which poor planning contributed substantially to the
collapse of the entire post-intervention effort, led the Clinton Administra-
tion in 1993 to develop the “¬rst-ever inter-agency political-military plan”
for the subsequent intervention in Haiti.76 The relative (though short-lived)
success of that effort led the Clinton Administration in 1997 to promul-
gate Presidential Decision Directive 56 (PDD 56).77 PDD 56 made plan-
ning for all aspects of “complex contingency operations” a central feature
of U.S. efforts to cope with and respond effectively to the rising demand
for U.S. involvement in humanitarian interventions and peace operations
generally. PDD 56 required preparation of a detailed political“military
plan intended to ensure coordination among different U.S. agencies, and
with international organizations and other actors, in responding to com-
plex emergencies, and to ensure a match between mission mandates and
resources.
The Bush Administration, skeptical about Clinton-era interventions,
decided to abandon the PDD 56 process.78 In January 2003, shortly before
the Iraq war, the Administration put the Defense Department in charge of
postwar reconstruction planning, assigning it a responsibility that has tra-
ditionally rested with (and would later return to) the State Department.79
Partly as a result of this decision, and its timing, the United States did not
accurately anticipate or plan for the security problems it actually encountered
74 See High-Level Panel on Threats, Challenges and Change: A More Secure World: Our Shared
Responsibility (2004), at 62, available at http://www.un.org/secureworld/.
75 Ponzio, supra note 72, at 7.
76 Final Report, supra note 13, at 10.
77 Id.
78 Council on Foreign Relations Report, In the Wake of War: Improving U.S. Post-
Con¬‚ict Capabilities, July 2005, at 9, available at http://www.cfr.org/publication/8438/
in the wake of war.html.
79 Id., at 9“10.
365
ENHANCING RULE OF LAW EFFORTS


in Iraq. Pre-war warnings about the dif¬culty of rebuilding Iraq were largely
ignored.80 U.S. of¬cials later acknowledged that they had not foreseen either
the extent of the lawlessness that plagued postwar Iraq or the extent to which
Iraq™s infrastructure had deteriorated.81 Former U.S. lieutenant general Jay
Garner, the man initially tasked with leading the reconstruction effort, admit-
ted to Congress that his was “an ad hoc operation, glued together over about
four or ¬ve weeks™ time,” and that his team “didn™t really have enough time
to plan.”82
In fact, the United States did engage in signi¬cant prewar planning for
Iraq. In April 2002, the State Department launched an extensive study of
key issues likely to arise in the aftermath of an Iraq war. The study, titled the
Future of Iraq Project, pulled together a large and diverse team of experts into
seventeen working groups to study issues ranging from transitional justice
to security to reorganizing the economy.83 The transitional justice working
group explicitly warned of postwar chaos and the potential release of thou-
sands of criminals held in Iraqi jails and noted that “[t]he period immediately
after regime change might offer these criminals the opportunity to engage
in acts of killing, plunder, and looting.”84 The report went on to urge that
the United States should “organize military patrols by coalition forces in all
major cities to prevent lawlessness, especially against vital utilities and key
government facilities.”85 Similarly, the economy and infrastructure working
group recognized the extent of the investment that would be needed to repair
Iraq™s infrastructure.86
The project eventually produced thirteen volumes of reports and support-
ing documents. But of¬cials at the Pentagon, which assumed the primary
role in postwar planning, held a different vision of postwar Iraq, and largely
ignored the State Department™s work.87 Indeed, General Garner™s Pentagon-
based Of¬ce of Reconstruction and Humanitarian Assistance (ORHA),
which was not established until January 20, 2003, did not even learn of

80 Warren Strobel & John Walcott, Post-war Planning Non-existent, available at http://www.
realcities.com/mld/krwashington/9927782.htm.
81 One U.S. military of¬cial observed with respect to early security efforts in Iraq, “[w]e™re
making it up with both hands,” and added, “[t]his isn™t the operational climate we expected.
We never expected such widespread looting, or such a general collapse of authority.” Thomas
E. Ricks, U.S. Alters Tactics in Baghdad Occupation; Less Threatening Posture Foreseen,
The Washington Post, May 25, 2003, at A1.
82 Eric Schmitt & David Sanger, Aftereffects: Reconstruction Policy; Looting Disrupts Detailed
U.S. Plan To Restore Iraq, The New York Times, May 19, 2003, at A1.
83 Eric Schmitt & Joel Brinkley, The Struggle for Iraq: Planning, The New York Times, October
19, 2003, at A1.
84 Id.
85 Id.
86 Id.
87 David Rieff, Blueprint for a Mess, The New York Times Magazine, November 2, 2003, at
28.
366 CAN MIGHT MAKE RIGHTS?


the State Department reports until the following month, less than a month
before the war began.88
Even then, the United States planned for the wrong contingencies. U.S.
forces prepared for several problems that largely did not occur, including
“numerous ¬res in the oil ¬elds, a massive humanitarian crisis, widespread
revenge attacks . . . and threats from Iraq™s neighbors.”89 The Pentagon
hoped that Iraqi police would be able to maintain some order and that
Iraqi soldiers would assist in reconstruction.90 The Pentagon simply did not
anticipate the wholesale collapse of the Iraqi military and police (and the
resultant security vacuum that created), or the extent of damage to Iraq™s
infrastructure, and as a result U.S. forces on the ground lacked the mandate,
training, equipment, forces, and operational plans for dealing adequately
with the looting and general lawlessness.
To improve its planning and response capacity, the United States Depart-
ment of State created the Of¬ce of the Coordinator for Reconstruction and
Stabilization in July 2004. This new of¬ce is charged with planning and
leading the U.S. civilian response to post-con¬‚ict situations and with coor-
dinating U.S. participation in multilateral operations. The of¬ce is working
to develop a framework for stabilization and reconstruction planning in an
attempt to ensure that planners set realistic post-con¬‚ict goals and that the
resources needed to achieve them are made available.91
The new State Department of¬ce marks an important advance in U.S.
efforts to plan and coordinate post-con¬‚ict efforts. At the outset, as pointed
out by a task force chaired by former U.S. national security advisors Samuel
Berger and Brent Scowcroft, the new of¬ce lacked the funding, staff support,
and institutional clout to play the role of lead interagency actor.92 The task
force recommended that the State Department coordinator be raised to the
undersecretary of state level, with the responsibility to oversee civilian post-
con¬‚ict efforts, and that USAID be given primary responsibility for daily
operations, with adequate funding for both agencies. The task force also
recommended creation of a new National Security Council directorate to
coordinate the roles of the military and civilian agencies.
Instead, in December 2005, President Bush issued National Security Pres-
idential Directive 44 (NSPD 44), which sets out a new framework for man-
aging U.S. government interagency efforts on post-con¬‚ict reconstruction
and stabilization efforts. NSPD 44 tasks the Secretary of State with primary
88 See Schmitt & Brinkley, supra note 83.
89 See Eric Schmitt & Joel Brinkley, State Department Study Foresaw Trouble Now Plaguing
Iraq, The New York Times, October 19, 2003.
90 Schmitt & Sanger, supra note 82.
91 Stephen Krasner & Carlos Pascual, Addressing State Failure, 84 Foreign Affairs 153, 161
(2005).
92 See Report of an Independent Task Force, In the Wake of War: Improving U.S. Post-
Con¬‚ict Capabilities, (2005), at 19, available at http://www.cfr.org/content/publications/
attachments/Post-Con¬‚ict Capabilities ¬nal.pdf.
367
ENHANCING RULE OF LAW EFFORTS


responsibility for planning and coordinating U.S. post-con¬‚ict reconstruc-
tion efforts and for resolving interagency “policy, program, and funding dis-
putes.”93 Moreover, the president™s 2006 budget requests $100 million for
a Con¬‚ict Response Fund and funding to strengthen the Of¬ce of the Coor-
dinator for Reconstruction and Stabilization. This “¬rst phase of funding
focuses on building core leadership, coordination and response capabilities
and providing baseline funding to support rapid ¬eld deployments essential
to creating positive dynamics on the ground.”94 Thus, on paper at least, the
Bush Administration has put in place a system that appears well suited to
planning and coordinating future U.S. post-con¬‚ict reconstruction efforts.
Whether this approach will live up to its promise remains to be seen.
Ideally, State™s new role, coupled with the recognition in Defense Depart-
ment Directive 3000.05 that “[s]tability operations are a core U.S. military
mission . . . [to] be given priority comparable to combat operations” should
lead to a greatly strengthened U.S. military“civilian response to post-con¬‚ict
reconstruction needs.95 But there is a risk that most of the necessary resources
and responsibility will ¬‚ow to the Defense Department, despite State™s cen-
tral role. Moreover, it is unclear, in a time of budget stress, whether the
Of¬ce of the Coordinator for Reconstruction and Stabilization will be given
suf¬cient staff or resources to handle the wide range of planning and imple-
mentation responsibilities placed on it. But properly supported, the NSPD
44 framework should substantially strengthen U.S. post-con¬‚ict planning
and implementation capabilities.


II. RESOURCES AND COMMITMENT

It is a truism that peace implementation efforts, of which rule of law reform is
a part, work only when the resources and commitment of the interveners are
adequate to the challenge posed by conditions in the affected state. Military
interventions of the sort considered in this book take place principally in
failed or failing states. Thus, although the range of dif¬culty presented by
each case differs widely, all demand substantial commitments of time, money,
and personnel.

A. Half Measures Are Often Worse Than None at All
Halfhearted interventions are almost certain to be wasteful and ineffective.
As the Brahimi Report observed, “Member States must not be led to believe
that they are doing something useful for countries in trouble when “ by
93 NSPD 44, available at http://www.fas.org/irp/offdocs/nspd/nspd-44.html.
94 Of¬ce of the Coordinator for Reconstruction and Stabilization, Fact Sheet, available at
http://www.state.gov/s/crs/rls/43327.htm.
95 See Directive 3000.05, available at http://www.dtic.mil/shs/directives/corres/pdf/d300005
112805/d300005p.pdf.
368 CAN MIGHT MAKE RIGHTS?


under-resourcing missions “ they are more likely agreeing to a waste of
human resources, time and money.”96 Yet time and again, interveners “
whether acting through the United Nations, a regional or subregional orga-
nization, or ad hoc coalitions of the willing “ underestimate the challenges
of restoring stable governance and the rule of law, refuse to commit the
resources that might foster a successful transition, and exit before reforms
have had a chance to take hold. Interveners have been driven out of Somalia,
held hostage in Sierra Leone, sidelined in Afghanistan, and attacked in Iraq
in substantial part because of a refusal to match resources to the magnitude
of the tasks at hand. Even in relatively successful cases, such as East Timor,
reforms are often super¬cial and interveners often withdraw “without hav-
ing built adequate local capacity.”97 Thus, even though great sums have been
spent on post-con¬‚ict reconstruction and rule of law assistance, much of it
has not borne fruit.
The reasons for failing to devote adequate time and resources vary from
case to case. In some cases, pressure to intervene, driven by the “CNN effect,”
may prompt states to vote for or participate in operations to which they are
not fully committed. In such cases, as in Somalia, unexpected casualties or
mounting costs can easily reverse domestic political calculations and generate
pressure for a premature withdrawal. In other cases, unduly optimistic plan-
ning assumptions may shatter against hard realities. In Iraq, for example, the
United States sharply underestimated the number of troops and level of com-
mitment required to stabilize the country and establish a rule of law-based
government. In still other cases, fostering good governance and inculcating
the rule of law is simply not a priority; in Afghanistan, for example, the
United States and its allies focused at least initially on pursuing al-Qaeda
and Taliban remnants, shortchanging post-intervention reconstruction and
reform.
In a nutshell, the failure to match resources and commitment to the prob-
lems posed stems from an imbalance between interveners™ perceived inter-
ests and the magnitude of the problems they confront. A recent study of
sixteen efforts to implement peace agreements following civil wars con¬rms
that “the most important variable” in determining whether countries will
provide the requisite resources and troops “is whether assisting the affected
country is seen as vital to the national interests of a major or regional power,”
otherwise “the resources and commitment necessary for coercive strategies
to succeed will not be forthcoming.”98 The study concludes that in dif¬cult

96 Brahimi Report, supra note 3, para. 59.
97 Jarat Chopra, The UN™s Kingdom of East Timor, Survival, Autumn 2000, at 31.
98 Stephen Stedman, IPA Policy Paper Series on Peace Implementation, Implementing Peace
Agreements in Civil Wars: Lessons and Recommendations for Policymakers, May 2001,
at 2, available at http://www.ipacademy.org/PDF Reports/Pdf Report Implementing.pdf.
See also U.S. General Accounting Of¬ce, Letter from Joseph Christoff to Henry Hyde,
369
ENHANCING RULE OF LAW EFFORTS


environments, characterized among other things by contending multiple par-
ties, the presence of spoilers, the existence of valuable natural resources that
can fuel con¬‚ict, and hostile neighbors, great or regional power interest
should be treated as a “hard constraint.”99 In its absence, international and
regional organizations ordinarily should not attempt peace implementation
missions and, by extension, major rule of law reform efforts. The Brahimi
Report makes a similar point. It notes that the complexity of the environ-
ment varies considerably, depending on the sources of con¬‚ict, the “number
of local parties and the divergence of their goals,” the “level of casualties,”
the attitude of local authorities and neighboring states, and similar factors,
and concludes: “In less forgiving, more dangerous environments . . . United
Nations missions put not only their own people but peace itself at risk unless
they perform their tasks with the competence and ef¬ciency that the situation
requires and have serious great power backing.”100
It does not follow that the Somalias of the world should be ignored because
no great power perceives its national interests to be at stake. Lack of great
power interest can be at least partially compensated for by securing a robust
collective mandate and advance commitments of key states to support it.
Problems arise principally when the Security Council or a regional organi-
zation directs a mission to assume comprehensive nation-building respon-
sibilities, including rule of law reform, without providing the mission the
troops, resources, or political backing necessary to ful¬ll those responsibili-
ties. When that happens, the UN or regional organization is likely to ¬‚ounder
or worse.
To some extent, the Secretary-General has already acted on the Brahimi
Report™s suggestion that the “Secretariat must tell the Security Coun-
cil what it needs to know, not what it wants to hear. . . . ”101 Thus, the
Secretary-General resisted efforts to deploy a UN peacekeeping operation
in Afghanistan in 2001 as too dangerous and successfully urged robust man-
dates for UN peacekeeping operations in Liberia and in the Democratic
Republic of Congo in 2003.102 More generally, the Secretary-General has
articulated a strategy intended to permit effective peacekeeping and to match
resources to need, highlighting the need for sustained political support and
appropriate mandates, among other things.103 The Security Council has indi-
cated its support for that strategy, though it continues to decide “on a

May 24, 2002 (comparing the relative success of NATO-led deployments in the Balkans
with failed UN-led missions in Somalia and Bosnia), available at http://www.gao.gov/
new.items/d02707r.pdf.
99 Stedman, supra note 98, at 6.
100 Brahimi Report, supra note 3, para. 25.
101 Id., at para. 64d.
102 See Durch et al., supra note 37.
103 See S/2001/138, Letter dated February 12, 2001 from the Secretary-General addressed to the
President of the Security Council, February 14, 2001.
370 CAN MIGHT MAKE RIGHTS?


case-by-case basis whether to authorize the peacekeepers and resources
required to implement it.”104
Efforts to build effective rule of law institutions (and governance insti-
tutions generally) are particularly vulnerable to ¬‚uctuations in commitment
and resources, because such “activities normally take considerably longer
than the average peacekeeping operation.”105 Below some minimum thresh-
old of resources and commitment, a threshold determined by the dif¬culty
of the environment, peace implementation and rule of law efforts will be
wasted. Above that threshold, such efforts may have a positive impact,
though they will always be vulnerable to problems of design and implemen-
tation, and to exogenous factors outside the control of interveners, ranging
from natural disasters to spillover effects from nearby con¬‚icts.106

B. Finding Funds
Adequate resources are plainly crucial to rule of law promotion and to peace
implementation generally. As a participant in a conference on post-con¬‚ict
reconstruction has observed, “[i]f you don™t identify resources, you™ll just
end up with a checklist.”107 Overall, international donors “pledged over
sixty billion dollars in aid to assist the recovery of three dozen war-torn
countries” during the 1990s.108 Although rule of law assistance was only a
small part of that total, the success of rule of law promotion efforts is bound
up in the success of overall reconstruction efforts. But despite the magnitude
of the total aid pledged, often relatively little actually reaches those the funds
are ostensibly intended to help.
In all cases, of course, money and interest are limited. Both tend to
decline as time passes and new crises emerge to compete for attention and
resources. Thus, “while dramatic con¬‚ict and emergency will typically mobi-
lize resources and interest from the international community, once a crisis
fades from the political radar screen, the international community tends to
walk away prematurely.”109 Rapidly waning international interest creates a
mismatch between the time and resources needed for an effective transition
and the time and resources outside states will commit. Creating conditions
for sustainable peace, and by extension, a viable rule of law system, invari-
ably takes longer and costs more than interveners expect.110
104 Transition Strategies, supra note 11, at 2.
105 In Larger Freedom, addendum, supra note 68, para. 14.
106 Cf. Stedman, supra note 98, at 8 (noting the vulnerability of peace implementation efforts
generally to “extraneous factors” such as business cycles, famine, and the like).
107 Durable Foundation, supra note 32, at 28.
108 Stewart Patrick, The Check Is in the Mail: Improving the Delivery and Coordination of
Post-Con¬‚ict Assistance (1998), available at http://www.cic.nyu.edu/archive/pdf/the check
is in the mail.pdf.
109 Durable Foundation, supra note 32, at 7.
110 Transition Strategies, supra note 11, at 27.
371
ENHANCING RULE OF LAW EFFORTS


The present system of cobbling together resources ad hoc is clearly unsatis-
factory and widely recognized as such. Although the process followed varies
from case to case, funding efforts often begin with preliminary discussions
among a core group of donors, UN and other international organization
of¬cials, and national authorities of the affected state. Thereafter, an inter-
national donor conference is held, and agreement is reached on the man-
date and composition of an in-country needs assessment mission. The mis-
sion helps de¬ne the post-con¬‚ict reconstruction agenda by identifying the
country™s needs and their magnitude; in some cases, a transitional results
matrix is produced, specifying in some detail which projects must be accom-
plished within given time frames. Pledging conferences often follow, to enlist
additional donors and attempt to match funding to assessed needs. Various
¬nancing structures, such as multidonor trust funds, may be employed to
organize ¬nancial assistance efforts in a coherent way.
But the process rarely goes smoothly. Post-con¬‚ict needs assessments and
joint assessment missions are sometimes fragmented, with different compo-
nents using different assessment tools. Often, states make ¬nancial pledges at
donor conferences and then fail to follow through.111 Even when donors do
follow through, the amounts pledged are frequently inadequate, and there
is often a substantial delay between pledges and delivery.112 Moreover, of
the amounts allocated for post-con¬‚ict missions, only a small portion may
actually reach the affected population. In East Timor, for example,

Of the UN Transitional Administration™s annual budget of over $500 million, around
one-tenth actually reached the East Timorese. At one point, $27 million was spent
annually on bottled water for the international staff “ approximately half the budget
of the embryonic Timorese government. . . . 113

Similarly, in Iraq, only a small percentage of aid allocated has actually been
disbursed. At a fall 2003 conference in Madrid, donor governments pledged
some $32 billion in reconstruction assistance. The United States pledged
$18.4 billion for the Iraq Relief and Reconstruction Fund, which Congress
approved in November 2003. More than six months later, less than $400 mil-
lion of the U.S. allocated funds had actually been disbursed, with more money
“spent on administration than all projects related to education, human rights,
democracy and governance.”114 As of April 2005, the United States had

111 See Durable Foundation, supra note 32, at 29.
112 United Nations Development Programme, UNDP Background Paper for Working Group
Discussions, May 5“7, 2004, at 6, available at http://unpan1.un.org/intradoc/groups/
public/documents/UNTC/UNPAN016465.pdf.
113 Simon Chesterman, You, The People: The United Nations, Transitional Administration,
and State-Building 183 (2004).
114 Rajiv Chadrasekaran, U.S. Funds for Iraq Are Largely Unspent, The Washington Post,
July 4, 2004, at A1.
372 CAN MIGHT MAKE RIGHTS?


delivered only about one-fourth of the aid it had allocated, and other states
only about 10 percent of the amounts they had pledged.
The reasons for the often wide gap between aid pledged and aid deliv-
ered are many and varied. Growing international involvement in complex
emergencies comes at a time when resources are relatively scarce. As of July
2005, the United Nations had eleven ongoing “political and peacebuilding”
missions and seventeen peacekeeping operations;115 both types of operations
are carried out mostly in impoverished states, in which all manner of post-
con¬‚ict assistance is required. The demand for post-con¬‚ict peacebuilding
resources is therefore high, even as international economic conditions have
led many states to reduce their outlays.
Further, the plethora of states, international organizations, NGOs, and
other actors involved in assistance decisions tends to disperse responsibility
and create free-rider incentives. Because interventions of the sort considered
in this book usually take place in areas of marginal strategic interest, donors
often have only modest incentives to assist, and those incentives dwindle
sharply when the burden can be shifted to other actors, and even more so
when the affected state falls out of the headlines. Even when interventions
engage the strategic interests of important states, as in Iraq or Afghanistan,
political differences among potential donors may impede efforts to mobilize
substantial resources. In Iraq, for example, many European states have coop-
erated only grudgingly with U.S. reconstruction efforts, given their opposi-
tion to military intervention in the ¬rst place.
In addition, post-intervention states seldom have the institutional capacity
to absorb the relatively large amounts of aid that typically ¬‚ow at the outset
of reconstruction efforts. As Stewart Patrick notes,

On the demand side, states recovering from war often lack both the absorptive capac-
ity needed to manage considerable sums of money emanating from diverse foreign
sources for multiple purposes and the administrative structures required to design
and implement comprehensive plans for reconstruction.116

To complicate matters, donors invariably have their own priorities and
agendas. It is understandable that donors wish to control how their funds
are spent. In practice, however, this means that donors “design aid packages
to re¬‚ect their own political and pecuniary interests “ or the interests of
their national service providers.”117 As a result, a variety of distortions and
inef¬ciencies appear in aid policies. Countries of strategic interest, or with
close ties to powerful states, receive a disproportionately large share of donor
attention. Kosovo gets more than Somalia, and Iraq more than Afghanistan.
Donors tend to prefer high-visibility projects, which may take years to plan

115 See UN Factsheet, available at http://www.un.org/peace/reports/peace operations/.
116 Patrick, supra note 108.
117 Id.
373
ENHANCING RULE OF LAW EFFORTS


and put in place, shortchanging less glamorous but more urgent quick-impact
projects. Moreover, donors may be reluctant to provide aid to programs,
such as security sector reform, that carry signi¬cant future political risks or
past political taint, however important such aid might be.118 For example,
despite UN appeals, “most donors declined to support a new civilian police
in El Salvador,”119 notwithstanding the critical importance of such aid to
larger rule of law reform efforts and to peace implementation overall. Some
NGOs are complicit in the misallocation of donor resources, spending much
of their time “raising funds from local donor missions and UN agencies”
rather than providing services.120
Donors™ desire to control the uses to which their aid is put, though
in substantial part self-interested, also re¬‚ects an understandable desire
for accountability and transparency in recipients™ expenditures. From the
donors™ standpoint, much of the aid that reaches recipients is wasted, because
of incompetence, corruption, mismanagement, inadequate legal frameworks,
poor infrastructure, and limited absorptive capacity.121 Worse, aid badly
administered or misdirected can undermine reconstruction efforts by dis-
torting the local economy, fostering dependence, or bolstering corrupt or
authoritarian politicians. Accordingly, donors routinely seek to put condi-
tions on satisfaction of performance or behavioral criteria, for example,
meeting ¬scal targets or basic human rights standards.122 But the standards
are often inconsistent and sometimes contradictory. Where the international
¬nancial institutions have traditionally focused on economic conditional-
ity, other donors “use conditionality to consolidate peace.”123 At times, the
two con¬‚ict. In Bosnia, for example, the Of¬ce of the High Representa-
tive and the European Union wanted to condition aid on satisfaction of
political goals; this con¬‚icted with the World Bank™s exclusively economic
mandate.124 Although considerable progress has been made in recent years “
the World Bank, for example, has a Con¬‚ict Prevention and Reconstruc-
tion Unit that improves the bank™s capacity to take post-con¬‚ict needs into
account “ the use of conditionality remains inconsistent and confusing to aid
recipients and donors alike. Moreover, in many instances, recipient states,
“[w]hether through venality, incompetence, or misfortune . . . sometimes fail
to meet even the most generous loan conditions.”125

118 Salvatore Schiavo-Campo, Financing and Aid Management in Post-Con¬‚ict Situations,
CPR Working Paper No. 6, June 2003, at 15, available at http://www.unsudanig.org/JAM/
clusters/development/background-docs/FinancingAidMgmtArrangmts.pdf.
119 Patrick, supra note 108.
120 Chesterman, supra note 113, at 186.
121 See Patrick, supra note 108.
122 A particularly stark example is the Governance and Economic Management Assistance
Program (GEMAP) imposed on Liberia, as discussed in Chapter 4.
123 See Patrick, supra note 108.
124 Schiavo-Campo, supra note 118, at 14.
125 See Patrick, supra note 108.
374 CAN MIGHT MAKE RIGHTS?


Perhaps most problematic of all is the fact that donors often poorly moni-
tor and coordinate their multiple assistance efforts. “[P]arallel efforts are pur-
sued through diverse pledging initiatives, variegated ¬nancing instruments,
and sundry implementing partners.”126 As each donor follows its own pri-
orities and procedures, some programs are needlessly duplicated, whereas
others are not funded at all. Donors commonly lack adequate systems to
track pledges, commitments, and disbursements and so ¬nd it dif¬cult to
target aid effectively. Pledges that are largely ¬ctitious render planning and
resource allocation all the more dif¬cult, forcing service providers to over-
state their needs, undermining expectations of recipient populations, and
disrupting peace implementation programs of all kinds.
National authorities in the recipient states should, of course, insist on
effective donor coordination and tie donor aid to their own national budgets
and priorities. But often national authorities lack either the capacity or the
incentive to perform this function effectively. “Dueling donors” may provide
unscrupulous politicians a desired “nurturing environment for bad policies
and corruption.”127
These problems plague peace implementation efforts generally and rule
of law assistance programs speci¬cally. As the Secretary-General™s Report on
building the rule of law in post-con¬‚ict societies observes,

Inadequate coordination in this sector leads to duplication, waste, gaps in assistance
and con¬‚icting aid and programme objectives. Worse yet, the uncoordinated interven-
tion of the international community can have the effect of distorting domestic justice
agendas, wastefully diverting the valuable time of domestic justice sector actors and
consuming precious development resources.128

Part of the problem is that complex emergencies have often been treated
on an ad hoc and reactive basis. For UN peacekeeping operations, only
tasks speci¬cally included in the mission mandate are ordinarily funded from
assessments on member states. In the past, much of the funding required for
post-con¬‚ict reconstruction efforts, including rule of law promotion, has not
been included in the mandate and so has had to come from voluntary con-
tributions, with all the problems that entails. In recent UN peace operations,
however, the Security Council, urged on by the Secretariat, has made greater
efforts to include in the mandate essential peacebuilding tasks, including
critical rule of law responsibilities. Thus, in the Afghanistan mission, for
example, development of the judicial system was included in the mandate;
institution-building and judicial system development were also included in
the mandate for East Timor.

126 Id.
127 USAID, Donor Coordination Strategies, September 22, 200 (copy on ¬le with authors).
128 Report of the Secretary-General, supra note 5, at 20.
375
ENHANCING RULE OF LAW EFFORTS


Similarly, the trend in DDR funding appears to be toward greater inclu-
sion in UN mandates. In the past, mission mandates have often included
funding for disarmament and demobilization, but funds to support reinte-
gration (seen as an economic support issue) had to come from voluntary
contributions. The Brahimi Report correctly noted that this often created
a dangerous gap. As recently as the 2003 UN Mission for the Democratic
Republic of Congo, support for reintegration was limited to voluntary fund-
ing. But in the more recent UN mission for Liberia, funding for reinte-
gration was included in the mandate.129 Nonetheless, many states remain
reluctant to include important aspects of post-con¬‚ict reconstruction, espe-
cially humanitarian assistance and economic reconstruction, in mission
mandates.
Overall, though donors “are generally more eager to script their own role
in post-con¬‚ict reconstruction than to coordinate with other international or
local actors,”130 they recognize the problems noted above. Many have taken
at least modest steps toward improving existing mechanisms to mobilize
and deliver aid. Increasingly, pledging conferences are used by key actors,
including donor states, international agencies and lending institutions, and
representatives of recipient states, to review and re¬ne proposed reconstruc-
tion efforts and to coordinate assistance accordingly. These meetings, often
led by the World Bank because of its lead role in economic development, may
discourage free riding, promote equitable burden sharing, and mobilize inter-
national and domestic political support for reconstruction efforts.131 Multi-
donor trust funds help organize ¬nancing efforts under one tent and can be
matched more effectively to national government budgets than a plethora of
funds and ¬nancing vehicles. The Afghanistan Reconstruction Trust Fund,
for example, has worked relatively well as a vehicle to coordinate donor
programs and Afghan national government priorities across most major
budget categories.132 But pledging conferences and trust funds have their
limits. Donors sometimes claim political points by pledging amounts they
will never produce; often they “double-count” amounts previously commit-
ted or delivered.133 And donors often lack adequate incentives to submerge
their interests in multidonor trust funds or avoid them because of their high
overheads and “glacial” operations.134 Funds focusing on selected sectors or
issues may be more ¬‚exible in some circumstances.
129 See Durch et al., supra note 37, at 28.
130 Play to Win, supra note 13, at 7.
131 See Patrick, supra note 108; Chesterman, supra note 113, at 194.
132 See Schiavo-Campo, supra note 118, at 27“30.
133 Patrick, supra note 108.
134 Chesterman, supra note 113, at 197. Agency views on the effectiveness of trust funds differ.
For example, the World Bank viewed its trust fund for East Timor as a success, whereas UN
agencies thought it was inaccessible, cumbersome, and slow. Report of the UNDG/ECHA
Working Group, supra note 14, at 25.
376 CAN MIGHT MAKE RIGHTS?


The new UN Peacebuilding Commission, despite its limitations, may do
much to overcome some of the obstacles to effective funding of post-con¬‚ict
activities, including rule of law assistance. As the Secretary-General notes,
the commission could “provide a mechanism through which donors could
be encouraged to make speci¬c, sustainable commitments to the ¬nancing of
peacebuilding and recovery activities” and could “help to ensure adequate
early attention to and ¬nancing for oft-neglected issues, such as building
public administration capacity for the rule of law. . . . ”135 The commission
could also review planned ¬nancing for peacebuilding activities to “iden-
tify shortfalls and gaps” and catalyze efforts to ¬ll those gaps.136 Moreover,
the new UN standing Fund for Peacebuilding, if adequately ¬nanced, could
“provide national authorities with vital support for strengthening institu-
tions of the rule of law, national reconciliation processes and similar efforts
to reduce the risk of con¬‚ict.”137 In short, the Peacebuilding Commission
and its associated fund could, in theory, offer a guaranteed source of fund-
ing and centralized direction, review, and coordination of reconstruction aid.
But most states remain unwilling to surrender control of the uses to which
their funds are put and might be reluctant to commit substantial resources
to a voluntary fund. So long as that remains true, it may be necessary to
pursue modest, incremental changes to recent practices. Such changes could
include steps to increase transparency and donor accountability in aid efforts;
tighten the coordination mechanisms currently in place; create standardized
systems monitoring pledges, commitments, and disbursements; and develop
more consistent conditionality practices.


III. IMPROVING LOCAL PARTICIPATION

“Better to let them do it imperfectly than to do it yourself, for it is their country, their
way, and your time is short.” T. E. Lawrence138

It is almost a truism now to say that local actors “must own the pro-
cess of reconstruction.”139 The purpose of peace implementation and rule
of law reform is, after all, to develop sustainable institutions and a cul-
ture of respect for law that will outlast the presence of the interveners.140
135 In Larger Freedom, supra note 68, para. 10.
136 Id., at para. 11.
137 Id., at para. 23.
138 The Seven Pillars of Wisdom (1935).
139 See, e.g., Play to Win, supra note 13, at 6 (“[t]he people of the country in question must
own the reconstruction process and be its prime movers”).
140 See, e.g., Balkans 2010, Report of an Independent Task Force Sponsored by the Council on
Foreign Relations Center for Preventive Action 2002, at 9 (“the ultimate goal for the inter-
national community in the region [the Balkans] is to turn over responsibility to local leaders
who are accountable to their fellow citizens and who support democratic values”), available
377
ENHANCING RULE OF LAW EFFORTS


From a self-interested standpoint, critical objectives of military interven-
tion “ ensuring regional stability and eliminating breeding grounds for
migration, terrorism, and international crime “ generally will not be accom-
plished beyond the life of the mission, if at all, unless governance reforms
take hold. Early termination of peace implementation efforts in Somalia,
Liberia, and Sierra Leone led to protracted warfare and near anarchy and,
in the latter two cases, to renewed external interventions. Incomplete insti-
tution building in East Timor has left that state with relatively weak state
institutions and a fragile capacity for rule of law. Yet, it is, or at least it
should be, the goal of interveners engaged in post-con¬‚ict peacebuilding to
“work themselves out of a job” by helping to build local commitment and
capacity.141
In determining the role local actors should play in peace implementa-
tion generally, and in rule of law efforts speci¬cally, three points should be
kept in mind. First, durable social change must come from within; it can be
guided but not imposed by external actors.142 Second, the notion of local
“ownership” is complicated; externally driven institution-building and rule
of law reforms necessarily entail choosing among competing local actors with
different visions of their society and different claims to represent it. Third,
international and local priorities, standards, and values will at times con¬‚ict,
forcing interveners to seek a balance between respect for local preferences
and satisfying international norms.

A. Change from Within
Peace implementation and transitional governance efforts require interven-
ers to build democratic governance and respect for the rule of law in societies
that have little or no experience with either. The comparative advantage of
the international actors is their familiarity with successful governance insti-
tutions and rule of law norms, but that advantage is at least partly offset
by their lack of familiarity with the political and social structures oper-
ating in transitional states and the normative and cultural commitments
that underpin those structures. Thus, building sustainable democratic and
law-governed institutions and practices requires more than monitored elec-
tions and the construction of western-style governance and legal institutions.
It demands the establishment of institutions and practices viewed by the

at http: // unpan1.un.org / intradoc/groups /public /documents / UNTC / UNPAN009978.pdf;
Michelle Flournoy & Michael Plan, Dealing with Demons: Justice and Reconciliation, 25
Wash. Q. 111, 112 (2002) (“the guiding principle for international assistance in the justice
and reconciliation arena should always be to seek to empower local actors and to promote
the building of sustainable indigenous capacity while reinforcing respect for human rights
and international norms”) (italics in original).
141 See Project on Justice in Times of Transition, Incorporating Local Voices into International
Rule of Law Strategies: A Policy Dialogue, 2002, at 11 (hereafter Policy Dialogue).
142 See Review of Peace Operations, supra note 10, at 33 para. 85.
378 CAN MIGHT MAKE RIGHTS?


local population as legitimately constituted and consistent with local norms
and preferences. Otherwise, “the population ends up with a government
and state bodies that are not accepted within the world view of the local
population. . . . ”143
Rule of law assistance may be particularly sensitive to local variations
in culture, values, and preferences. Legal systems rely heavily on precedent
and the training in particular approaches of those involved in the system.
Participants in the system tend to resist new methods, as the United States
discovered in its efforts to promote rule of law in the states of the former
Soviet Union. In the early years of those efforts, the United States “empha-
sized the promotion of western methods and models of reform.”144 But “as
it became clear that host country of¬cials often did not consider these to be
appropriate to their local contexts, USAID began to foster the development
of more ˜home-grown™ reforms.”145
Although local actors in post-intervention states may sometimes have lit-
tle choice but to accept, at least nominally, imposed western models as a
condition for aid, local actors can usually ¬nd many ways to subvert or
resist implementation of those models or to turn them to self-interested ends
inconsistent with interveners™ purposes. It has taken time to learn this les-
son. In some peace implementation operations, such as Cambodia, Liberia,
Sierra Leone, and Haiti, interveners concentrated initially on establishing
the formal structures and practices of western democratic governance “ elec-
tions, the separation of power among the executive, legislative, and judicial
branches, creation of nominally independent police and courts, and the like.
But for a host of reasons, including the interveners™ limited mandates, polit-
ical pressures for early exit, resource constraints, lack of expertise on local
conditions, and insuf¬cient attention to local capacity building, as well as
the sheer complexity and dif¬culty of post-intervention environments, the
imported structures and practices never took root or did so only super¬cially.
Instead, shortly after the interveners™ departure, competition for political
power and resources took the form of coups and civil war rather than elec-
tions and legal process, in some cases leading to renewed external military
intervention.
In the long run, sustainable reforms must have popular support. Such sup-
port is contingent on the active involvement of representative local actors
in the process of developing the institutions and legal frameworks of gover-
nance, so that these institutions and frameworks are perceived as legitimate

143 Id., at para. 86.
144 See GAO Report, supra note 1, at 11. For a discussion of successful U.S. contributions to
criminal justice reform efforts in the former Soviet Union, see Mathew Spence, The Com-
plexity of Success: The U.S. Role in Russian Rule of Law Reform, Carnegie Endowment,
July 2005, available at http://www.carnegieendowment.org/¬les/CP60.spence.FINAL.pdf.
145 Id., at 11.
379
ENHANCING RULE OF LAW EFFORTS


in origin. Support is also contingent on building local capacity for demo-
cratic self-governance and on adapting unfamiliar governance methods and
norms to accord with local values.
In recent peace operations, especially the transitional governance opera-
tions in Kosovo, East Timor, and Iraq, interveners have taken more seriously
the need to involve local actors in decision-making, to build local capacity
for governance, and to take into account local values and beliefs. But for
many reasons, doing so successfully is extraordinarily dif¬cult. Thus, the
UN Transitional Administration in East Timor, for example, despite success-
fully accomplishing its overall strategic mission of fostering the birth of an
independent East Timor, has been criticized for failing, early on, to appreci-
ate adequately the critical importance of local participation. As one observer
put it, UNTAET built institutions
based on the assumption that there were no strong concepts and ideas existing on the
local level, and that the population just had to be ˜taught™ democracy. . . . This ignored
the fact that human beings grow up in a social environment with powerful ideas of
how to classify and understand their world. Local perceptions and practices were
thought of as cultural ˜folklore™ and were not accorded much signi¬cance. Therefore
international attempts [at institution building] often failed or had marginal impact.146

Although this observation may overstate the case with respect to East
Timor, it captures a recurrent problem in peace implementation efforts. In
Chapter 8, we discussed ways in which local commitment to a rule of law
culture may be fostered. We consider below some of the dif¬culties involved
in attempting to promote local “ownership” of the reform process and in
reconciling international and local values and priorities.

B. The Dilemmas of Local Ownership
The notion of local ownership entails both local participation in and, to the
extent feasible, local control of the development and operation of institu-
tions and governance practices. The latter necessarily entails the creation of
adequate local capacity. But developing local participation and capacity is a
project fraught with dif¬culty, for several reasons.
First, encouraging local participation is not a politically neutral enter-
prise. To a greater or lesser degree, it means picking winners and losers,
empowering some actors and disempowering others. In the aftermath of
military intervention, host state governance capacity is typically extremely
limited. Infrastructure is in ruins, and local actors with signi¬cant govern-
ment, administrative, or judicial experience “ those few who remain in-
country “ are often viewed as tainted by prior association with a discredited
and oppressive former government. In the competition for political power
146 Id., at para. 87 (quoting Tanja Hohe, The Clash of Paradigms: International Administrations
and Local Political Legitimacy in East Timor, unpublished paper, Brown University, 2001).
380 CAN MIGHT MAKE RIGHTS?


that inevitably ensues, interveners™ choice of local interlocutors necessarily
shifts the local balance of power, for better or worse. As one observer put it,
“[c]hoosing which actors to recognize, which ones to work with, and what
processes and projects to support can tilt the balance of power either toward
or away from a stable peace.”147
In theory, interveners should work with groups and individuals who col-
lectively are broadly representative of the society at large. In the constitution-
drafting process, for example, some broad-based national dialogue of the
sort that emerged in Afghanistan, one that includes all or nearly all political
parties and viewpoints, constitutes one vehicle for promoting local owner-
ship of the constitution that results. But working with representative local
actors in the day-to-day process of transitional governance is extraordinarily
dif¬cult, particularly in deeply divided post-intervention states. In Kosovo,
for example, western intervention was generally welcomed by Albanian
Kosovars, who had self-appointed local authorities in place, ready and will-
ing to consult with transitional administrators on the future governance
of the province. But Kosovar Serbs did not welcome the intervention and
resisted efforts to draw them into governance decision-making. In East
Timor, the National Council for Timorese Resistance (CNRT), a coalition
of proindependence groups, seemed the logical interlocutor for UNTAET.
But CNRT consisted of diverse parties with widely divergent agendas; more-

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