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over, CNRT™s leadership “was composed largely of Lusafone expatriates who
were, in some respects, out of touch with the youthful Indonesian-speaking
majority of the East Timorese population.”148 UNTAET saw CNRT more
as a political party than a protogovernment and for the most part “kept its
distance.”149 To the extent UNTAET did rely on CNRT as a local partner,
it inadvertently advanced “particular individuals and factions through the
mechanisms of participation.”150
In other post-intervention states, interveners intentionally choose local
partners on the basis of their likely contribution to the interveners™ post-
con¬‚ict objectives. To the extent those objectives center on building democ-
racy and the rule of law, a selection bias seems appropriate. There is no
point to strengthening local warlords or obstructionist nationalists, even if
they have a signi¬cant popular following. But applying a selection bias in
practice is fraught with peril. The United States worked hard to empower
local actors in Iraq who were receptive to western political objectives and to

147 Robert Orr, Post-Con¬‚ict Reconstruction Project, Meeting the Challenges of Governance
and Participation in Post-Con¬‚ict Settings, Draft White Paper 2002, at 3, available at
http://www.idlo.int/texts///IDLO//mis6307.pdf.
148 Joel Beauvais, Benevolent Despotism: A Critique of U.N. State-Building in East Timor, 33
N.Y.U. J. Int™l l. & Pol. 1101, 1123 (2001).
149 Schiavo-Campo, supra note 118, at 21.
150 Beauvais, supra note 148, at 1123.
381
ENHANCING RULE OF LAW EFFORTS


marginalize actors hostile to the coalition™s presence and goals. For example,
the United States put a disproportionate number of exile parties™ represen-
tatives on the Iraqi Governing Council and worked to exclude groups seen
as too radical or too aligned with Iran. But the result was that the governing
council™s legitimacy in the eyes of the local population, and its effective-
ness, were sharply undermined, and the United States was forced to move
more quickly than it had intended, and more quickly perhaps than a viable
transition required, to an Iraqi-controlled government.
In general, promoting local ownership is a dynamic and variable process.
In many cases, it is neither possible nor desirable to include the full spec-
trum of local actors, because some will be adamantly opposed to the entire
reconstruction effort. Instead, it may be necessary to work with key national
stakeholders at the outset and then work to broaden the base of support for
interveners™ efforts over time.151
Even assuming interveners can identify and work with representative local
actors, including them actively in the early stages of post-intervention gov-
ernance complicates an already overwhelming task. Inevitably, there exists a
tension between interveners™ short-term mission, to stabilize and help govern
a failed polity, and their longer-term mission, to build sustainable political
institutions and practices that will survive the interveners™ departure. The
extent of the tension will vary widely, depending on a variety of factors,
most notably whether the mission is a “light footprint” effort to assist a
nascent government or a full-scale transitional administration.
When a national government is in place or being put in place, it is rel-
atively easy to co-locate international staff in national ministries and take
other steps to build local capacity and involvement. In particular, the exis-
tence of national authorities facilitates preparation of a national budget and
disbursement of aid in concert with local priorities. But even then, capac-
ity issues limit the utility of efforts to empower local actors. In Liberia, for
example, the United Nations had government ministers chair key sectoral
groups in the reconstruction process, but the effort foundered because there
was no capacity within the ministries to support the ministers.152 In such
cases, interveners often take over, marginalizing national authorities in an
effort to get the task at hand accomplished.
The tension is even greater with transitional administration missions. In
such cases, the short-term governance mandate “is predicated on centralized
international control and staf¬ng of the transitional administration, whereas
preparation for democratic self-government implies broad participation of

151 See World Bank, An Operational Note on Transitional Results Matrices: Using Results-
Based Frameworks in Fragile States, January 2005, at 5, available at http://www.undg.org/
documents/5532-Operational Note on Transitional Results Matrices - Results Matrix
Guide.pdf.
152 Eide et al., supra note 41, at 34.
382 CAN MIGHT MAKE RIGHTS?


local stakeholders in decisionmaking and intensive investment in building
local capacity.”153 Overstretched and underresourced transitional adminis-
trations have only limited capacity to incorporate local actors in decision-
making. It is simply faster and easier for interveners to make decisions by
decree rather than through protracted negotiations with local actors, partic-
ularly in deeply divided states and those with little local governance capacity,
even though the cost of doing so may be to undercut longer-term efforts at
capacity building.
In the emergency environment that characterizes the start-up of most
post-intervention missions, whether light footprint or transitional adminis-
tration, it is usually the “˜logic™ of peacekeeping and emergency relief” that
dominates; a logic that entails “heavy, foreign and largely self-suf¬cient and
self-contained presence, international recruitment and political neutrality,
quick results, short time-frame.”154 By contrast, a focus on capacity build-
ing entails a “logic of development” “ an “emphasis on [local] participation,
bottom-up, long time-frames, process-as-result, institution building.”155 In
all cases, then, interveners must strike a balance “between the mission™s
efforts to re-establish a public administration, maintain some control, and
monitor quality and progress, on the one hand, and its ultimate respon-
sibility to facilitate local ownership and effect eventual handover on the
other.”156
Ideally, local actors will be actively involved from the outset, starting with
needs assessment and mission planning. Their knowledge of local conditions
can help interveners avoid major mistakes (such as choosing an applicable
law that is anathema to those asked to apply it) and lend legitimacy to what
might otherwise appear as foreign encroachment. And their early involve-
ment can build badly needed local capacity from the start. But in practice, it
is easier to include local actors as the situation stabilizes and the transitional
administration develops its own capacity. Thus, in Kosovo, the Secretary-
General envisioned several phases, beginning with direct rule by UNMIK,
and followed by gradually increasing delegation of authority to local actors,
to joint administration, to a form of assisted self-governance.157 Similarly,
in East Timor, UNTAET initially focused on developing its own governance
capacity.
This approach risks marginalizing local actors. In East Timor, for exam-
ple, a perceived lack of capacity on the Timorese side led UN of¬cials to
commit one of the “cardinal sins” of post-intervention assistance: “with a

153 Beauvais, supra note 148, at 1106.
154 Id., at 1113 [quoting Astri Suhrke, Reason and Reconstruction: The Multiple Logics of
UNTAET 2 (2001)] (unpublished manuscript).
155 Id.
156 A Review of Peace Operations, supra note 10, at 30 para. 69.
157 Kosovo Report, supra note 52, at 15“17.
383
ENHANCING RULE OF LAW EFFORTS


very few individual exceptions, the expatriate experts focused almost entirely
on doing the jobs, instead of also gradually bringing in, training, and empow-
ering local individuals.”158 Only well into the mission, when UNTAET was
effectively compelled by East Timorese pressure to concentrate on local par-
ticipation and capacity building, did UNTAET shift its approach.159 Even
then, UNTAET took a bottom-up approach to the recruitment of Timorese
government employees, increasing the time needed for Timorese to reach
senior positions and exercise real in¬‚uence over decision-making; as a result,
the Timorese at independence were not nearly as well prepared to govern as
they might have been.160 In retrospect, it would have been preferable at the
outset to work toward systematic inclusion of Timorese in governance and
decision-making at all levels.
Sierra Leone offers a positive example of efforts to build local capacity.
After a series of false starts, interveners worked with the national author-
ities to devise a “national recovery strategy.” The strategy rested heavily
on gradually restoring civil administration and rule of law to districts out-
side the capital, as they became accessible. The approach adopted “placed
the government in the driver™s seat, with an emphasis on building national
capacities from the ground up, district by district. . . . ”161 Although it is too
early to judge the overall success of these efforts, considerable progress has
been made.
In other cases, when indigenous national authorities have been ousted or
discredited, interveners may be tempted to work principally with “outsider
nationals,” members of a returning diaspora who speak the language and
know the culture of the interveners. Although such individuals may bring
much-needed technical skills, they may correspondingly lack familiarity with
local conditions. As in Iraq, undue reliance on returning nationals may also
generate resentment among those who have remained in-country and may
sti¬‚e local initiatives.162
Overall, the trick is to ensure that the best does not become the enemy
of the good and that local actors are involved as much as is reasonably
feasible as early as possible, without strengthening those responsible for
con¬‚ict in the past or likely to resist needed reforms. The tendency of most

158 Schiavo-Campo, supra note 118, at 23.
159 Beauvais, supra note 148, at 1114. This is true even though the Secretary-General in an
October 1999 report expressly called for employing East Timorese in transitional admin-
istration positions “where quali¬ed individuals are available,” and when such individuals
were not available, for employing a “dual-desk” system in which international staff would
pair with local counterparts to build capacity and prepare them to assume full responsibility
for the functions at issue. S/1999/1024, Report of the Secretary-General on the Situation in
East Timor, October 4, 1999.
160 Schiavo-Campo, supra note 118, at 23“24.
161 Report of the UNDG/ECHA Working Group on Transition Issues, supra note 14, at 19“20.
162 See Schiavo-Campo, supra note 118, at 45.
384 CAN MIGHT MAKE RIGHTS?


post-intervention efforts to date has been to opt for ease of administration
by sidelining local perspectives.163 This approach inappropriately prioritizes
short-term over long-term needs. Today™s emergency crowds out tomorrow™s
sustainable development. But given the overall goal of peace implementation,
greater attention to inclusion and capacity building are essential; it is local
actors, after all, who remain when the interveners depart. At the same time,
interveners need to be candid about the extent to which local actors will be
involved in decision-making in peace implementation efforts and straightfor-
ward about the conditions that will lead to a shift in interveners™ approach.
Creating and then ignoring vehicles for local ownership of the post-con¬‚ict
reconstruction process is likely to generate greater opposition than specify-
ing openly the limits of local involvement, the reasons for those limits, and
the circumstances that will lead to the gradual assumption by local actors of
full decision-making power.

C. Handling Value Con¬‚icts
One of the dif¬culties of “local ownership” of the peace implementation pro-
cess is that local and international values and priorities often con¬‚ict. Inter-
veners generally engage in governance and rule of law reform with western
human rights standards in mind. But the states in which interventions take
place almost by de¬nition lack experience with such standards, and local
actors in any event have their own priorities.
In some cases, those priorities include ¬nishing un¬nished business with
adversaries in the con¬‚ict that prompted intervention. In Kosovo, for exam-
ple, many Albanian Kosovars viewed the legal system as a forum in which
to continue their con¬‚ict with Serbs. In interethnic disputes, local judges fre-
quently displayed “ethnic and political bias . . . as a result of actual or poten-
tial security threats, or of their own preference.”164 Moreover, much of the
local population refused “to cooperate with the judiciary in cases involving
former combatants.”165 Thus, efforts to develop local capacity by employ-
ing local judges ran counter to mission objectives (promoting interethnic
harmony and protecting basic minority rights). As a result, UNMIK was
forced to employ international judges in potentially sensitive cases. While
other UNMIK departments were downsizing and transferring responsibility
to local actors, UNMIK™s Department of Justice was expanding and increas-
ing international control over the legal system.166 This created a system with

163 A Review of Peace Operations, supra note 10, at 18.
164 Kosovo Report, supra note 52, para. 185; see also id., para. 202 (“On the one hand there
was a trend not to consider evidence in favour of minority community defendants and on
the other a trend towards dismissing charges against and releasing former KLA members
and other powerful Albanians”).
165 Id.
166 Id., at para. 190.
385
ENHANCING RULE OF LAW EFFORTS


international and local components, with control residing primarily with
the internationals. As a result, “[t]he local side of the system is developing
dependence on the international side in the sense that, despite their initial
opposition, local judges are now comfortable with not having to deal with
sensitive cases and do not wish to do so in the future, for as long as former
KLA members might be involved.”167 In short, the move to international
judges, though unavoidable from an international values standpoint, per-
mitted Kosovar judges to escape responsibility for living up to international
standards.
In other cases, the clash between international and local standards proves
more subtle. In Sierra Leone, for example, “the U.N. strategy for restor-
ing local government . . . included reestablishing both hereditary chieftaincies
and elected district councils.”168 But “reliance on hereditary chieftains has
always compromised transparency and accountability. . . . ”; it also “limits
democratic participation because only candidates meeting hereditary lin-
eage requirements” are eligible to ¬ll such posts.169 Thus, respect for local
practices may entail violating the standards interveners are committed to pro-
moting. Moreover, it may also complicate later efforts to strengthen demo-
cratically elected local governments.
Similarly, in East Timor, long and unfortunate experience with the Indone-
sian justice system “had created widespread mistrust and lack of faith in for-
mal state justice processes. . . . ”170 As a result, even after UNTAET attempted
to reform the of¬cial justice system, there was “continued widespread
reliance on traditional or customary justice mechanisms that operated at
the village level.”171 Yet these relatively informal local mechanisms some-
times “show little regard for the rights of women,” and, at least in some cir-
cumstances, their use constituted “a signi¬cant obstacle to applying Western
norms of judicial conduct and respect for human rights.”172
Interveners confronted with such value con¬‚icts face dif¬cult choices. On
the one hand, they cannot, at least formally, accept local practices that violate
international standards. On the other hand, they risk irrelevance, charges of
imperialism, or worse, if they push western values too aggressively. Striking
the right balance is context sensitive and will necessarily vary from case
to case. As a practical matter, however, interveners often have no choice;
continued reliance on local justice in East Timor, for example, could not
be avoided because no fully functioning justice system existed outside the
capital, nor could one be created quickly.

167 Id., at para. 231.
168 Transition Strategies, supra note 11, at 25.
169 Id.
170 East Timor Report, supra note 62, para. 219.
171 Id.
172 Transition Strategies, supra note 11, at 26.
386 CAN MIGHT MAKE RIGHTS?


At the same time, interveners and local actors both have to remain ¬‚exible
and be prepared to adapt as conditions change. What might not be possible at
the outset of the post-intervention period may become possible as conditions
improve and as interveners and local actors work together to adapt imported
practices and institutions to local norms and preferences. The post-con¬‚ict
reconstruction process should be dynamic and evolutionary; not everything
can be done at once, and positive changes may be phased in over time.



CONCLUSION

Rule of law assistance efforts can only succeed as part of a larger effort
to stabilize the affected country and create a functioning government. To
succeed, interveners must plan and coordinate peace implementation and
rule of law programs in a systematic way, scale commitment and resources
to need, and actively involve local actors in peacebuilding and rule of law
efforts. With that in mind, interveners should take the following steps:
r Achieve unity of effort. Key international actors must agree early on a
coherent strategic plan for the post-intervention period. This plan should
be developed through broad consultations with relevant stakeholders and
keyed to the post-con¬‚ict political blueprint for the country™s future. The
plan should set out agreed priorities and foster a genuine partnership
among the relevant international and local actors. The UN Peacebuilding
Commission offers one obvious forum for planning and coordination at
the international level, notwithstanding the limits described earlier. Sim-
ilarly, NSPD 44 offers a good example of the possibilities for improving
national planning and implementation processes.
r Conduct a comprehensive needs assessment mission as early as possi-
ble, using common assessment tools and frameworks, to help identify
needs and priorities and determine the appropriate sequencing of post-
intervention efforts. At the same time, recognize the need to pursue
reforms that will prove mutually reinforcing. Utilize a strategic level plan-
ning body, such as the new UN Peacebuilding Commission, to foster
strategic coherence and resource mobilization at the intergovernmental
level. More critical than the planning structure chosen is the need to fos-
ter early and coordinated participation of the key actors and to divide
responsibility for achieving agreed objectives.
r Create a comparable, ¬eld-level planning and coordination mechanism,
such as an integrated mission, again recalling that the structure of that
mechanism is less important than fostering a genuine partnership among
the multiplicity of organizations and government agencies involved in the
post-intervention effort.
387
ENHANCING RULE OF LAW EFFORTS

r At both the strategic and ¬eld levels, establish detailed benchmarks and
timetables for achievement of mission goals and systematically review
progress and revise objectives as needed to re¬‚ect changing realities on
the ground.
r Particular attention should be paid to coordination of donor activities,
utilizing trust funds and other devices to encourage predictable ¬nanc-
ing of priority projects that address urgent needs. Ensure that donors
take a synergistic, systemic approach to identifying ¬nancing needs, so
that reform efforts reinforce each other. To the maximum extent possible,
donors™ activities should be transparent to minimize waste, corruption,
and misallocation of monies attributable to donor self-interest.
r Involve local actors as early and as fully as feasible in all aspects of plan-
ning and implementation of post-intervention efforts from the assessment
of needs to the establishment of benchmarks and timetables. But recog-
nize the risks of pursuing inclusion, and be candid when signaling the
extent to which local actors will or will not be involved in particular deci-
sions. Where possible, provision of economic assistance should be linked
to national development plans and budgets.
r When local capacity is too weak to involve local actors fully, a compre-
hensive effort should be made as early as possible to build adequate local
capacity and to transfer governance responsibility as quickly as practical
to local actors.
Ultimately, of course, responsibility for the country™s future must rest
with its population. But these and other steps outlined above will improve
the chances that peace implementation efforts in general, and rule of law
assistance in particular, are not derailed or wasted altogether.
CHAPTER TEN




Conclusion




This is not an optimistic book. Throughout the preceding chapters, we have
emphasized the enormous challenges associated with building the rule of law
after military interventions. The very concept of the “rule of law” is elusive
to begin with, and striving for the rule of law requires a constant juggling
act on the part of interveners. It is little wonder that so many past efforts in
this area have been so disappointing.
But this book is not entirely pessimistic, either. Although the challenges
are daunting, we are convinced that modest successes are possible. If the
international community has delivered less than was promised in Kosovo,
Bosnia, Sierra Leone, East Timor, and Afghanistan, people in these soci-
eties are nonetheless probably better off than if there had been no outside
interventions and no subsequent rule of law programs. In each case, serious
problems remain: security is tenuous, economic development has been slow,
serious rights abuses continue, political and legal institutions have struggled
to achieve credibility and effectiveness, and many abuses have gone unpun-
ished and uncompensated. Nonetheless, in each case, things could be far
worse.
The moral, we think, is that it is possible for outside interventions to help
foster the rule of law, but only if interveners fully understand the nature
and magnitude of the task “ and only if interveners understand that the role
outsiders can play is crucial but limited.
We can™t afford not to face up to the challenges associated with building
the rule of law, for the international community will face these issues again
and again in the years to come. However much we wish it were not so, the
foreseeable future will continue to bring us armed con¬‚icts and interventions
driven both by humanitarian concerns and by security imperatives. And for
the reasons we emphasized in this book™s introductory chapter, interveners
will continue to face pressures (both self-imposed and externally imposed) to
help repair both the damage they ¬nd and the damage they cause in con¬‚ict-
ridden societies, in part through efforts to restore the rule of law.
388
389
CONCLUSION


Interveners will, of course, also continue to have a short-term incentive
to do rule of law “on the cheap.” But the costs of such penny-wise, pound-
foolish approaches are becoming ever more evident. In Iraq, for instance, the
failure of the U.S.-led coalition to devote adequate planning and resources to
the period immediately following the overthrow of Saddam Hussein badly
discredited the coalition. Those early failures allowed insecurity to spiral and
brought civil reconstruction projects to a virtual standstill in many parts of
Iraq. Progress on rule of law issues has consequently also been uneven and
slow. The price in¬‚icted by the unsuppressed civil violence has been paid
primarily by the Iraqis, who have lost at least 30,000 civilians in the period
since major ¬ghting ended. But the United States and other coalition states
have also paid a high price: well over 2000 U.S. soldiers have been killed
in Iraq so far, and thousands more have been badly wounded. Hundreds of
other foreigners have also been killed in Iraq, including dozens of humani-
tarian workers such as those who died in the 2003 truck-bombing of the UN
of¬ce in Baghdad. The Iraq experience has been a painful object lesson in
just why interveners need to invest the resources to do things correctly from
the start.
In any case, however troubled we may be by unwise, ill-planned, or poorly
executed interventions, we cannot wish interventions away; those of us who
care about human rights and the rule of law can, however, try to make the
best of the situation. Although there is no guarantee that powerful states
and institutions will in fact learn from past mistakes, they certainly will not
change unless policymakers and analysts are willing to clear-headedly assess
just what we know and what we do not know about fostering the rule of
law. Armed with the insights gained from this assessment process, we can
strive, in the future, both to avoid the most glaring mistakes of the past and
to develop innovative new approaches.
If past rule of law programs have been disappointing, one major reason is
that far too many past programs have been based on simplistic assumptions
about the relationship between formal legal institutions and durable cultural
change. As we have emphasized throughout this book, policymakers and
interveners have tended to con¬‚ate “the rule of law” with the formal legal
institutions that support the rule of law in complex democracies. As a result,
far too many rule of law programs have focused mainly on judicial training,
law reform, and similar forms of technical assistance, failing to understand
that these programs alone cannot produce the rule of law.
Thus, a critical ¬rst step in avoiding the failures of the past involves recog-
nizing just how nuanced a concept the “rule of law” really is. In Chapter 3,
we offered a pragmatic de¬nition of the rule of law, a de¬nition designed to
emphasize that the rule of law is a complex bundle of institutions, rules, and
cultural commitments. That means that those who wish to design rule of law
programs need to think about the rule of law holistically, understanding that
390 CAN MIGHT MAKE RIGHTS?


there are certain background conditions critical to the success of narrower,
institutionally focused reforms.
If interveners are themselves perceived as having acted illegitimately or
illegally, for instance, subsequent efforts to promote rule of law values will
face challenges to their credibility. This was the case in Iraq, where the legally
contested intervention made the subsequent rebuilding efforts a harder sell
with multiple audiences. The Abu Ghraib prison abuse scandal also greatly
undermined U.S. efforts to promote the rule of law in Iraq and elsewhere.
Similarly, an early failure to provide basic human security can also badly
undermine rule of law efforts. People too fearful to venture out of their homes
can make little use of their legal rights, and hunger and disease similarly take
priority over more complex governance issues. Past rule of law efforts have
also often been sabotaged by poor planning and coordination, by the failure
to think through the likely consequences of different governance blueprints,
by inadequate local knowledge, and by inadequate resources.
But fostering rule of law in post-intervention settings has been, and will be,
dif¬cult even under the best of circumstances, because rule of law efforts after
military interventions are plagued by inherent paradoxes and contradictions.
Most obviously, the idea of using coercion to convince people of the value
of the rule of law is inherently paradoxical. The paradox is particularly
apparent in settings such as Iraq, where a signi¬cant sector of the population
views the U.S.-led invasion as itself illegitimate, but it also causes dif¬culties
even in settings where interveners are largely welcomed by local citizens. By
nature, interveners are in a position to foster the rule of law because of their
superior capacity to use coercion: it is this capacity for coercion that can
force an end to tyranny or civil con¬‚ict and bring opposing groups to the
same table. But it is hard to promote a lasting commitment to law through
the barrel of a gun.
Efforts to build the rule of law are also inherently dif¬cult because local
populations are made up of numerous individuals or groups, who may
(and usually do) have wildly varying (and sometimes shifting) interests and
incentives. As a result, interveners often face built-in con¬‚icts: ensuring that
minorities are protected and represented politically often con¬‚icts with the
desire of majorities to exercise control, for instance. Fostering “local owner-
ship” and respecting local cultural norms may con¬‚ict with efforts to ensure
rights for women, children, and religious minorities.
Societies do not stand still, and decisions must often be made quickly.
Short-term interests often con¬‚ict with long-term interests (for instance, col-
laboration with local warlords or militias may be useful in establishing basic
security in the short term but may dangerously empower spoilers in the long
term). In practice, promoting the rule of law is never politically neutral,
although interveners often like to imagine that it is: the decisions made by
interveners necessarily empower some local actors at the expense of others.
391
CONCLUSION


This incites opposition (sometimes violent), which can in turn force inter-
veners to respond with coercion, which then generates more opposition.
Interveners must constantly make choices among imperfect alternatives,
and as a result, movement toward the rule of law is rarely linear but rather
back and forth. It is this that led us, in this book, to adopt a synergistic
account of building the rule of law.
The synergistic approach is described in Chapter 3 and returned to in
many of the chapters that follow. To recapitulate, a synergistic approach to
building the rule of law is ends-based and strategic in that it aims to achieve
certain clear overarching objectives or effects rather than focusing narrowly
on particular means (such as formal legal institutions) to the exclusion of
others. It is adaptive and dynamic in that it aims to build on existing cultural
and institutional resources for the rule of law and move them in a con-
structive direction, but it recognizes, at the same time, that the rule of law
is always a work in progress, requiring continual maintenance and reeval-
uation. It is systemic because it emphasizes interrelationships between the
various components of a functioning justice system, highlighting the neces-
sity of an integrated approach to reform to achieve effects not possible by
focusing on single institutions in isolation.
Such an approach, adopted with appropriate modesty, can make a real
difference. Progress toward the rule of law is rarely linear but instead involves
frequent movement back and forth: a success in reforming legislation may
be counterbalanced by a walkout from the political process by a disgrun-
tled groups of stakeholders; a program to train women in effective legal
advocacy and community organizing may be counterbalanced by restrictions
on women™s movements resulting from a surge in insecurity. As with most
human endeavors, progress will be uneven and often dif¬cult to measure.
Nonetheless, interveners need to strive to keep the momentum going in
the direction of the rule of law. If enough progress is made, sometimes a
tipping point is reached, and things begin to come together. But with too
many errors and setbacks, the balance can also tip in the other direction. As
recent events in Iraq indicate, momentum and goodwill, once lost, can be
exceptionally dif¬cult to recover.
In Alice in Wonderland, Alice tells the Queen that “one can™t believe
impossible things.” The Queens responds briskly: “I daresay you haven™t
had much practice. . . . When I was younger, I always did it for half an hour
a day. Why, sometimes I™ve believed as many as six impossible things before
breakfast.” In a sense, interveners who wish to build the rule of law after
military interventions must not only believe in six impossible things before
breakfast: they must, in fact, do their best to accomplish the impossible.
At least, it may seem that way. After all, this book has emphasized that
to maximize their chances of success, interveners must somehow accom-
plish all of the following: they must acknowledge the complexity of the
392 CAN MIGHT MAKE RIGHTS?


rule of law and be clear about what it is that they are trying to achieve.
They must develop basic governance blueprints to determine how to create
appropriate institutions, while recognizing that the choice of blueprints will
inevitably constrain and possibly undermine some rule of law goals. They
must seize early opportunities to ensure basic security and reform police,
prisons, courts, law schools, and so on, all in tandem. They must ensure
that accountability efforts send the right messages and enhance local capac-
ity and avoid undermining rule of law efforts through cultural insensitivity,
poor planning, lack of transparency, or the appearance of hypocrisy. They
must think creatively about building rule of law cultures, which requires
going beyond the traditionally “legal” to consider informal dispute resolu-
tion, community organizing and advocacy, civil society, education, media,
antipoverty and development initiatives, and ensuring inclusion of nonelites
and marginalized groups. Finally, they must contrive to plan and coordinate
all of the above, and ensure resources commensurate to the task.
It is, of course, impossible to do all that. Even the most powerful states
and institutions in the world can hardly do all that. The United States, for
all its global power and ambition, fell badly short of the mark in Iraq, for
instance. And most practitioners work on a far smaller scale: they design
programs for USAID, coordinate the efforts of an NGO, look for funding
opportunities for a foundation, or struggle, on the ground, to work with
local actors in small-scale programs.
But as we have said, although we are not overly optimistic, we are not
overly pessimistic, either. Although we may each be painting only one small
piece of the picture, it will surely be a better work of art if we all know just
what the picture is supposed to represent in the end, and if we have all given
conscious thought to how our own sketches or brushstrokes may ¬t into the
complex and evolving whole. If we can manage to be both more ambitious
and more modest, we may achieve, in the future, far more than we have in
the past.
In the world we inhabit, there is no other choice.
Index




ABA/CEELI. See American Bar adjudication, encouraging impartial,
Association/Central European and 240“243
Eurasian Law Initiative advocacy, legal, 74
Abu Ghraib prison, 6, 51, 219, 323 Afghan Independent Human Rights
Abuja agreement, 100 Commission (AIHRC), 257, 304
abuses Afghan National Police (ANP), 209
human rights, 249, 258 Afghanistan, 2
prevention of, 7, 259 accountability prospects of, 304“305
accountability for, 15, 249, 255, 259 Amnesty International (AI) in, 241,
effect on reducing faith in law, 15 338
accountability, 15 al-Qaeda in, 64, 118
in Afghanistan, 304“305 amnesty provisions of, 252
for atrocities, 15, 250, 253, 255 anti-Taliban groups of, 161
capacity building and, 261“263 Bonn agreement, 119, 120
condition for aid, 378 blueprint for, 117, 119, 120
demonstration effects, 258“261 budgetary problems of, 241
domestic approaches to, 301“306 center/periphery, 118“124
hybrid tribunals and, 278, 280 collapse of state-authority, 138
International Criminal Tribunal for constitutional process of, 97
Rwanda (ICTR), 263, 271 Constitutional Loya Jirga, 119, 120, 122,
International Criminal Tribunal for 123
Yugoslavia (ICTY), 263, 265 Constitutional Review Commission,
of interveners, 315, 326 122“124
learning curve, 250 continuing problems in, 68
long-term impact of, 253 criminal trials, 258
mixed approaches to, 256 democracy™s progress in, 98
non-pursuit of, 260 detention problems of, 220
norms, 260“261, 263 dispute-resolution mechanisms of, 335
for perpetrators, 255 division/misrule within, 160“162
realist approach to, 251, 253 elections, 117, 119“120, 124
rights-based approach to, 250, 251 Emergency Loya Jirga, 119, 120, 122
ripple effects, 260 ethnic tensions, 86, 118, 124
rule of law reforms and, 186, 253, 258“261 female parliamentary candidates, 196
victims and, 249 gender equality and, 122
violence and, 250 Generic Guidelines for Strategic
Accountability Now Clubs (Sierra Leone), Frameworks applied in, 359
297 heroin/opium trade of, 122, 161
Ad Hoc Human Rights Court (Indonesia), human rights in, 117, 119, 121, 122, 123
282 insecurity in, 121
adaptive reform, 183 inspections in, 63
393
394 INDEX

Afghanistan (cont.) Amputee Association, 294
Interim Authority in, 119 Annan, Ko¬, 6, 37, 288, 291, 349
international interventions in, 16, 86 General Assembly addressed by, 38
International Security Assistance Force High-Level Panel on Threats, Challenges
[ISAF], 120, 121 and Change, 39
judges of, 229, 233 Annex 4 (Dayton Accord), 92, 108
judicial misconduct in, 236 ANP. See Afghan National Police
judiciary of, 124, 229 ANZUS Treaty, 41
justice access problems, 244 Aristide, Jean-Bertrand, 31, 67, 140
legal text destruction, 194 departure of, 216
militia ¬efdoms of, 161 return to power by, 180
National Army of, 120 undermining by, 180
national languages, 123 Aristotle, 56, 70
Northern Alliance, 97, 119 armed con¬‚ict, law of, 26
Armed Forces Revolutionary Council
patriarchal orientation of, 334“337
(AFRC), 289
police of, 211, 213
Ashdown, Paddy, 111
political elites of, 117
Asia Foundation survey, 335
prison neglect in, 225
atrocities
Provisional Reconstruction Teams (PRTs)
accountability for, 15, 250, 253, 255
of, 121
Balkan War, 249
rebuilding rule of law in, 9
condemnation of, 261
Reconstruction Trust Fund of, 375
Security Council response to, 38
religious freedom in, 90, 122, 123
Sierra Leone™s, 293
stabilizing/rebuilding, 42
societal traumatization caused by, 249
Taliban in, 118, 121, 124
trials for, 250
Transitional Authority in, 119, 120
Australia
U.S. light footprint in, 118
East Timor and, 50
U.S. military intervention in, 2, 5, 19, 42
U.S. Special Forces in, 151
Baathist regime, 5, 126, 163
warlords of, 8, 90, 121
Balkan wars, atrocities in, 249
women denied rights in, 195
bar associations, support for, 332“333
women police in, 210
Barre, Siad, 156
AFRC. See Armed Forces Revolutionary
Bayley, David, 205
Council
Belgium, 36
Africa, 101
belligerents
African Charter on Human and People™s
DDR and, 167
Rights, 25
demobilization by, 146
AI. See Amnesty International
interveners v., 146
Aideed, Mohamed Farah, 156, 157, 166
risk/opportunity calculations of, 147
Aiding Democracy Abroad (Carothers), 74
weakening of, 145
AIHRC. See Afghan Independent Human
Berger, Samuel, 366
Rights Commission
Berlin Wall, 318
al-Qaeda, 2
bin Laden, Osama, 42
rooting out, 64, 118
Black Hawk Down, 157
terrorist training by, 42
Blair, Tony, 36
U.S. pursuit of, 64, 118, 121
blueprint(s)
Al-Sadr, Moqtada, 94
for Afghanistan, 117, 119, 120
All Liberia Conference, 100, 126
for Bosnia, 85“90, 92, 106“111
American Bar Association/Central European
country variances in, 85
and Eurasian Law Initiative
Dayton Accords, 85, 89
(ABA/CEELI), 239
design process, 88, 98
American Convention on Human Rights, 25
divided society, 106
amnesties
for East Timor, 103
Afghanistan, 252
of ECOWAS, 99
conditional, 251
as ¬‚exible guidelines, 91
Sierra Leone, 158, 251
identity-based con¬‚icts, 106“117, 124“131
Amnesty International (AI), 241, 245, 338
395
INDEX

for Iraq, 124“131 U.S. and, 89
implementing, 98 war crime trials of, 239, 266
jeopardizing local, 90 War Crimes Chamber, 228, 239, 267“268
for Kosovo, 99“102, 113 Bosnian Human Rights Chamber, 227, 228
for Liberia, 99“102 Brahimi, Lakhdar, 129, 153, 160
majoritarian electoral politics and, 87 Brahimi Report, 152, 193, 351, 369
managing state failure, 98“105 call for reforms, 357
political, 85, 350 doctrinal shift recommended by, 353
post-con¬‚ict, 97, 141, 348 on fundraising gap, 375
problems common to post-con¬‚ict, 88 IMTF creation by, 357
security, 136 U.N. recommendations, 357
settlement, 86 Bremer, Paul, 127, 142
steps laid out by, 85 Burkino Faso, 99, 102
Bockarie, Sam, 292 Bush, George W.,
Bonn Agreement, 110, 119, 160, 161 budget requests of, 367
Bosnia-Herzegovina, 2 Iraq planning by, 367
Brcko District reforms, 228 NSPD 3, 366
civil war in, 31 PDD-56 abandoned by, 371
CIVPOL involvement in, 214 2002 State of Union speech, 57
consociationalism in, 106“111 2005 inaugural speech, 57
Constitution of, 92, 96, 108“110 Bush Administration
corruption in, 241 on dangers of Hussein, 47
criminal networks of, 90 nation-building by, 63
Dayton Accords and, 159 National Security Strategy, 43, 44
democracy™s progress in, 98 preemptive action doctrine of, 43“46
divisions within, 106
entity-level courts of, 268 Cable News Network (CNN), 4, 368
ethnic diversity in, 106 Call, Charles, 140, 236
European Union, entrance into, 160 A Call for Justice report (AIHRC), 257
Human Rights Chamber, 239 Cambodia
hybrid tribunals of, 274 hybrid tribunals of, 274
ICG in, 333 western democratic governance imposed
ICTY™s impact on, 265“268 on, 378
Independent Judicial Commission (IJC) of, Campaign for Good Governance (CGG),294
226 capacity-building
infrastructure of, 111 accountability and, 261“263
inter-group violence of, 106 by ICTR, 273
international interventions in, 5, 16 local participation and, 261“263, 376“379
International Police Task Force of, 152 logic of development, 382
judicial appointments in, 232 in East Timor [hybrid tribunals and], 104,
judicial/legal system of, 226 105, 279, 283“284
as mini-Yugoslavia, 106 in Serbia, 273
Muslims of, 107, 109 in Sierra Leone, 297“299
Of¬ce of High Representative, 110, UNTAET and, 383
226“227 capitalism, rule of law and, 58
peace process of, 160 Carnegie Corporation, 17
political bargains of, 87 Democracy and Rule of Law Program, 74
rape as ethnic cleansing in, 168 Endowment for International Peace, 57,
rebuilding rule of law in, 9 73, 74
reform problems of, 227“228 Carothers, Tom, 57, 58, 74
rule of law promotion in, 62 Catholicism, 288
Serbs of, 92, 109 CAVR. See Commission for Reception, Truth
social fragmentation of, 349 and Reconciliation
spoilers entrenched in, 159“160 CDF. See Civilian Defense Forces
State Court of, 228 cease-¬res, 86
Truth and reconciliation commissions of, Cedras, Raoul, 31
254 CGG. See Campaign for Good Governance
396 INDEX

Chechnya, military campaign of, 66 report of, 3
child soldiers, 249 victims and, 288
Commission of Truth and Friendship (CTF),
China, 19, 23
284, 285, 301
Chopra, Jarat, 104, 105
Churchill, Winston, 22 Commission on Human Rights (U.N.), 37
citizens Communist era, 318
changing attitudes of, 240 community
collateral damage to, 324 East Timor reconciliation procedures of,
daily struggle of, 218 285“289
mutilation of, 249 police and, 205“207
NGOs™ empowerment of, 260 resentments, 208
police and, 204 rule of law, self, and, 312
skepticism of, 249 community reconciliation agreement (CRA),
civil society 286
investing in, 330“332 con¬‚ict entrepreneurs, 139
organizations/executive branch assistance, con¬‚ict legacy, 189
200 Con¬‚ict Prevention and Reconstruction Unit
role of, 15 (World Bank), 373
strengthening, 341“342 Con¬‚ict Request Fund, 367
civil war. See also wars con¬‚ict resolution, 33, 78
of Bosnia-Herzegovina, 31 con¬‚icts
of Liberia, 90 bargaining in, 89
of Sierra Leone, 90, 289 disputes driving, 86
Civilian Defense Forces (CDF), 289, 293 identity-based, 106“117
civilian police (CIVPOL), 148 national identity, 86, 87
of Bosnia, 214 state resource, 86
disparity among, 214 Congo. See Democratic Republic of Congo
enhancing capabilities of, 151“153 consociationalism
of Haiti, 215 of Bosnia, 106“111
CIVPOL. See civilian police de¬ned, 107
clinics, law school, 74 inter-elite cooperation of, 109
Clinton, Bill, 31, 157, 364 of Kosovo, 112
CNN. See Cable News Network constabulary forces, 150, 151
CNRT. See National Council of East Constitutional Framework for Provisional
Timorese Resistance Self-Government in Kosovo, 115“117
Coalition, United States led, 322, 323 constitutional legitimacy, 86
failures of, 323, 389 constitutional process, 92“95, 380
Iraqi sentiment toward, 324 of Afghanistan, 97
Coalition Provisional Authority (CPA), 127, constraints, 94
142, 168, 302 of East Timor, 96
Code of Hammurabi, 323 of Iraq, 96, 130
coercion milestones in, 96
law v., 313 political faction™s domination of, 94
Cold War, 13 poorly managed, 95“98
end of, 1, 29, 139 public participation in, 86, 95
¬rst generation peacekeeping operations Constitutional Review Commission
during, 154 (Afghanistan), 122“124
interventions/counterinterventions during, constitution(s)
28, 29 of Afghanistan, 124
strategic realities of, 28, 40 of Bosnia, 92, 96, 108“110
Commission for Reception, Truth and design of, 91
Reconciliation (CAVR) of East Timor, drafting, 86
197, 254“257, 282, 285 of Iraq, 126“129, 130, 131
community reconciliation procedures of, scope of, 91
285“289 of South Africa, 96
community reconciliation agreements study of, 91
(CRAs), 286 Contact Group, 112
397
INDEX

Convention Against Torture, 25, 79 strategic vision lack of, 356
Convention on the Elimination of All Forms unifying provisions of, 110
of Discrimination Against Women, 25, DDR. See disarmament, demobilization,
79 reintegration program
Convention on the Rights of the Child, 25 debates
corruption foreign policy, 57
in Bosnia, 241 U.S./international policy, 5
ECOWAS campaign against, 101 decolonization, 29
Europe™s campaign against, 101 Defense Department (U.S.), 151
in Haiti, 214 Directive 3000.05, 367
judicial, 137, 241 Defense Lawyer™s Unit (DLU), 279
in Liberia, 101 democracy
police, 203 building, 75
in Russia, 66 East Timor challenges, 201
Cote d™Ivoire, 99, 158 Iraq™s challenge of, 124
counter-terrorism, 40 norms, 2
counterinsurgency campaigns, 134, 135 progress in, 98, 113
courts relation to rule of law, 318
Bosnia™s entity-level, 268 Democracy and Rule of Law Program, 74
dysfunctionality of, 179 democratic legitimacy, 93
improvement of, 179 democratic policing, 205
non-elite™s access to, 341 Democratic Republic of Congo, 29
reform of, 226“230 fundraising for, 375
Sierra Leone™s, 354 U.N. peacekeeping operations in, 369
varied resources of, 320 demonstration effects, of accountability
Covenant of League of Nations, 21 proceedings 258“261
Covey, Jock, 155 Department of Corrections (New Zealand),
CPA. See Coalition Provisional Authority 224
CRA. See community reconciliation Department of Peacekeeping (U.N.), 357, 361
Department of Political Affairs (U.N.), 361
agreement
Department of State (U.S.), 92
Crane, David, 290, 295
development practitioners, 9
criminal justice systems, 184
Dicey, A. V., 70
criminal law, 192, 193
Dili District Court (East Timor), 279
Criminal Law and Judicial Advisory Unit
disarmament, demobilization, reintegration
(U.N.), 358
(DDR) program, 148
criminal networks, 90
belligerents and, 167
criminal trials, 250, 255
dif¬culty achieving, 165
Afghanistan™s, 258
discontents of, 165“172
core purpose of, 262
fundraising for, 166, 375
Croat-Muslim Federation, 108“110
gender issues, 167, 168
Croatia
interveners and, 166
ICTY Rules of the Road and, 266
momentum gained by, 169
Croats, 107
monitoring/verifying dif¬culty, 167
CTF. See Commission of Truth and
as political exercise, 166
Friendship
post-con¬‚ict stability/reconstruction
cultural dilemma, 53
efforts of, 169
customary law mechanisms
programs, 210
of Afghanistan, 336
Sierra Leone and, 168, 169
of East Timor, 335, 338
women and, 168
of Sierra Leone, 335
dispute-resolution mechanisms, 188, 341
and relation to formal law, 336
of Afghanistan, 336
and relation to rule of law, 310“316
of East Timor, 335, 338
of interveners, 337
Dayton Accords, 32, 89, 227
justice institutions and, 334“339
Annex 4 to, 92, 108
of Sierra Leone, 335
Bosnia and, 159
DLU. See Defense Lawyer™s Unit
purpose of, 107
398 INDEX

Doe, Samuel, 139 prison service of, 221, 223, 224
Doherty, Teresa, 237 public defenders, 284
donors referendum (1999), 278
conditions of, 373 rule of law promotion in, 62, 187
coordination of, 374 Serious Crimes Unit, 279, 280, 283, 286,
“dueling,” 374 288
high-visibility preference of, 372 Special Panels for Serious Crimes, 279,
sharing attention from, 372 282, 283, 288
wasting of aid from, 373 struggle for independence, 281
Dziedzic, Michael, 145 U.N. authorized intervention in, 32, 63,
103
East Timor, 2 U.N. Transitional Administration in, 379
advantages of independence, 103“105 UNTAET and, 32, 103, 197, 279,
Australia and, 50 339
blueprint, 103 war crime prosecutions, 256
capacity building in, 98, 283“284 women police in, 210
Catholicism in, 288 East Timor Police Training College, 211
Commission for Reception, Truth, and ECOMOG. See Economic Community of
Reconciliation (CAVR) of, 197, West African States Monitoring Group
254“257, 282, 285 Economic Community of West African States
community reconciliation procedures, (ECOWAS), 33, 34
285“289 anti-corruption campaign, 101
community resentments, 208 cease-¬re negotiated by, 99
constitutional process of, 96 Liberian crisis and, 99
community reconciliation agreements Mediation and Security Council, 34
(CRAs) in, 286 Monrovia secured by, 99
CTF of, 284, 285, 301 political divisions within, 157
decolonization of, 103 Economic Community of West African States
democracy™s progress in, 98 Monitoring Group (ECOMOG), 99,
dif¬culty training judges in, 234 157, 158, 168
Dili District Court, 279 economy
dispute-resolution mechanisms, 335, organized crime™s in¬‚uence on, 65
338 rule of law in¬‚uence on, 60
Defense Lawyers Unit (DLU) of, 279 ECOWAS. See Economic Community of
human rights/victims groups, 285 West African States
hybrid tribunals of, 274, 283, 301 education
independence as justice in, 278 legal, 185, 333“334
INTERFET intervention, 192 public, 185
international interventions in, 5, 6, 16 rule of law in¬‚uenced by, 342
international judges in, 235, 237 electoral politics, 87
Judicial System Monitoring Programme elites. See also non-elites; political elites
(JSMP) of, 201“202, 243“244, 330 accountability norms of, 260“261
judicial appointments in, 232 changing attitudes of, 240
Judicial Training Center, 235 political, 117, 139
judicial UNTAET appointments, 238 socialization of, 260
justice access problems, 244 Emergency Loya Jirga (Afghanistan), 119,
justice system problems of, 385 120, 122
language complications of, 234 entrepreneurs
National Recovery Strategy of, 383 con¬‚ict, 139
New Zealand Department of Corrections ¬‚ourishing of political, 139
in, 224 EO. See Executive Outcomes
“ordinary crimes” of, 283 equality
peacekeeper withdrawal from, 67 Afghanistan™s gender, 122
planning/coordination obstacles, 361 law and, 182
pledges unful¬lled in, 371 ethnic cleansing, 3, 66, 316
police of, 203, 211, 212, 354 EU. See European Union
police training undermined in, 353 Euro-Atlantic integration, 111
399
INDEX

Europe genocide, 3, 29
anti-corruption campaign of, 101 accountability, 263“264
state formation in, 138 in Bosnia, 168, 264
European Charter, 320 in Iraq, 302
European Convention for the Protection of protecting population from, 39
Human Rights and Fundamental in Rwanda, 32, 157, 271
Freedoms, 25 Genocide Convention (1948), 25
European Court of Human Rights, 320 Germany
European Union (E.U.), 63 NATO and, 35
Bosnia™s entrance into, 160 Peace Implementation Council meeting in,
Euro-Atlantic integration set by, 111 110
reconstruction efforts of, 360 post-World War II reconstruction, 140
Executive Outcomes (EO), 158 transformation in, 98
global security, 2
Feil, Scott, 142 Golub, Stephen, 346
Final Report of the Bi-Partisan Commission Governance and Economic Management
on Post-Con¬‚ict Reconstruction, 351 Assistance Program (GEMAP), 101, 102
Governing Council of Iraq, 302, 381
Fiss, Owen, 59
Government of National Unity (South
Fitzsimmons, Tracy, 211
Africa), 93
force
government(s)
Chapter VII authorization of, 22, 30
autocratic/corrupt, 26
international law limiting, 27
bound by law, 181
U.N. Charter and use of, 21“27
collapse of, 125, 137“140
foreign policy debates, 57
indigenous, 3
foundations, private, rule of law promotion
order provided by, 137
by, 62
restructuring institutions of, 134
Fourah Bay College (Sierra Leone), 334
top-down style of, 61
France
Great Britain
Iraq War and, 46“50
Iraq War and, 46“50
France, Germany, and the U.S.: Putting the
rule of law and, 70
Pieces Back Together (Levitte), 48
Sierra Leone and, 159
Franks, Tommy, 142
Guinea, RUF v., 159
French Gendarmerie, 150
Gusmao, Xanana, 105, 257, 281, 288
Fund for Peacebuilding (U.N.), 376
fundraising
Habimana, Aloys, 271, 272
DDR, 166, 375
Hague Regulations, 25
Democratic Republic of Congo, 375
Haiti, 2
ICTR, 273
Aristide departure from power, 216
JSMP, 331
Aristide restored to power, 140
rule of law programs, 370“376
CIVPOL in, 215
U.N. peacekeeping operations, 374
Clinton Administration plan for, 364
Future of Iraq Project, 365
collapse of state-authority, 138
corruption in, 214
Garner, Jay, 365
dismantling military in, 146
Gbao, Augustine, 289
ICG report on, 216
GEMAP. See Governance and Economic
international interventions in, 5, 16, 67
Management Assistance Program
National Penitentiary of, 224
gender issues, 122, 167, 168, 210
police of, 203, 211, 214
General Accounting Of¬ce (U.S.), 347, 351
police training undermined in, 353
General Assembly (U.N.), 24
prison reform of, 224“225
Annan™s address to, 38
rebuilding rule of law in, 9
Generic Guidelines for Strategic
restoring democratic leadership in, 7
Frameworks, 359
Security Council interventions in, 31
results-based budgeting adoption, 354
U.S. Special Forces in, 151
Generic Guidelines for Strategic Frameworks
western democratic governance imposed
(U.N.), 359
on, 378
Geneva Conventions (1949), 25, 323
400 INDEX

Haitian National Police (HNP), 180, 214, of Sierra Leone, 274, 289“295, 301
215 U.N. support for, 290
Hammergreen, Linn, 202, 243 variety of, 275
Hartmann, Michael, 277
Hayek, Friedrich von, 70 ICC. See International Criminal Court
Henkin, Louis, 23 ICCPR. See International Covenant on Civil
heroin/opium trade, 122, 161 and Political Rights
Herzegovina (see Bosnia-Herzegovina) ICG. See International Crisis Group
High Commissioner for Human Rights ICHR. See Irish Centre for Human Rights
(U.N.), 221 ICJ. See International Court of Justice
High-Level Panel on Threats, Challenges, ICTJ. See International Center for
and Change (U.N.), 39, 362 Transitional Justice
A History of the United Nations Charter ICTR. See International Criminal Tribunal
(Russell), 23 for Rwanda
HNP. See Haitian National Police ICTY. See International Criminal Tribunal
Horowitz, Donald, 88 for Yugoslavia
HRW. See Human Rights Watch identity-based con¬‚icts, 106“117
human rights identity politics, 106
abuses, 67 IGC. See Interim Governing Council
advocacy, 260 IGNU. See Interim Government of National
interveners and, 339 Unity
interventions and, 77 IJC. See Independent Judicial Commission
NGOs, 197 imperialism
norms, 3 goals of new, 5
principles, 13 military interventions compared/
promoting, 60 contrasted with, 3
protection of, 26, 27 western state™s rejection of, 2
public commitment to, 3 IMTF. See Integrated Mission Task Force
rule of law and, 59, 79, 186, 321 independence movements, 4
Sierra Leone clinic of, 334 Independent Judicial Commission (IJC), 226
treaties, 25, 29 Indonesia
U.N. Charter, Article 55, and, 353 acquittals of, 282
uncoordinated monitoring of, 350 Ad Hoc Human Rights Court, 282
UNMIK and, 195“196 Commission of Truth and Friendship
violations of, 26 (CTF) of, 284, 285, 301
Human Rights Chamber (Bosnia), 239 international pressure on, 278
Human Rights Commission (U.N.), 278 trends in, 282
Human Rights Watch (HRW), 67 Indonesian Code of Criminal Procedure, 194
humanitarian intervention(s), 2, 24, 29, Indonesian Criminal Code, 194
34 Institute of Peace (U.S.), 17, 91, 92, 109,
Kosovo dilemma of, 35“40 114, 144
legal basis for, 38 Model Detention Act, 221
norms, 38 Special Report, 150
Hussein, Saddam, 6, 30, 127 institutional insularity, 179
Bush Administration on, 47 institutions
de¬ance of, 47 collapse of, 313
NGO development thwarted by, 332 insularity of, 179
proceedings against, 302“304 interveners and state, 83
removing/replacing, 126, 389 Integrated Mission Task Force (IMTF), 357,
hybrid tribunals, 274“301 360
accountability/fairness of, 278, 280 Inter-American Commission on Human
advantages of, 275 Rights, 25
of Bosnia, 274 INTERFET. See International Force East
of Cambodia, 274 Timor
of East Timor, 274, 283, 301 Interim Agreement for Peace and
emergence of, 274 Self-Government (Kosovo), 112
of Kosovo, 275“278 Interim Governing Council (IGC), 127“128
401
INDEX

Interim Government of National Unity balance of power shifts caused by, 380
(IGNU), 100 belligerents v., 146
International Association of Women Judges, cease-¬res urged by, 86
239 challenges/opportunities for, 313
International Center for Transitional Justice choices of, 391
(ICTJ), 298 collaborative/multi-lateral actions of, 315,
International Convention on the Elimination 327
of all Forms of Racial Discrimination, DDR and, 166
25, 79 dilemma of, 88
International Court of Justice (ICJ), 26, 36 dispute-resolution mechanisms of, 337
International Covenant on Civil and Political divisive questions of, 87
Rights (ICCPR), 25, 79, 320 enhancing planning/coordination for,
International Covenant on Economic, Social 356“367
and Cultural Rights, 25 harm minimized by, 325
International Criminal Court (ICC) human rights accommodations of, 339
potential impact of, 305“306 illegitimate/illegal actions of, 390
Rome Statute of, 305 intelligence capability lacking in, 167
International Criminal Tribunal for Rwanda international standards imposed by, 90
(ICTR), 263 Iraq, 162
accountability/justice demonstrated by, knowledge lacked by, 136“137
272 Kosovo problems of, 195, 208
capacity-building by, 273 legal framework required of, 51
creation of, 272 linguistic/cultural know-how of, 315, 326
domestic impact of, 271“274 marginalization by, 343, 381
expenses of, 290 media and, 345
funding of, 273 NGOs catered to by, 332
obstacles faced by, 274 police and, 204
partnerships of, 273 political arrangements achieved by, 88
Rwanda votes against, 271 prioritization/sequencing necessity for, 355
shortcomings of, 265 public goods provided by, 135
Web site, 272 purpose of, 85
International Criminal Tribunal for reluctance of, 89
Yugoslavia (ICTY), 263 rule of law cultures created by, 328
expenses of, 290 rule of law promotion by, 312, 326“327
¬nancing of, 269 Security Council resolutions sought by, 51
impact on domestic rule of law, 265“268 short-term v. long-term mission of, 41
obstacles faced by, 274 spoilers v., 155, 164
Rules of the road, 266 standards of conduct required of, 51
Serbia and, 266, 268“271 state institution focus of, 83
shortcomings of, 265 strategic interests of, 89
UNMIK relationship with, 265 temporary legal codes needed by, 192“193
International Crisis Group (ICG), 110, 163, transparency of, 315, 326
216, 267, 333 underestimation by, 368
International Force East Timor (INTERFET), value con¬‚icts of, 385
192, 278 violations by, 90
international law, 26 western state, 90
impact of, 50 interventions
legitimate objectives of intervention and, armed, 18
50“51 Cold War, 28
International Police Task Force, 152 half-hearted, 367
international security assistance force (ISAF), human rights, 77
43, 120, 121 humanitarian, 2, 24, 29, 34, 35“38, 40
U.S./NATO expansion of, 162 international law and legitimate objectives
INTERPOL, 281 of, 50“51
interveners Kosovo, 5, 6, 16, 34, 114
accountability of, 315, 326 lack of resource in¬‚uence on, 8
arrests/detention by, 220 legality/legitimacy of, 12, 18, 52“53, 65
402 INDEX

interventions (cont.) Sunnis of, 52, 97, 125, 130, 220
multilateral, 3 TAL of, 129
old/new problems of, 5 TNA of, 130
“on the cheap,” 8 trials in, 254
reasons for, 7 2003 war in, 46“50
rebuilding indigenous security, 136 U.S. Coalition tensions with, 322
rule of law culture created by, 311 U.S. escape route possibilities, 64
Security Council authorized, 30 U.S. lessons in, 145
Soviet Union, 28 U.S. military intervention in, 2, 5, 6, 12
Tanzania™s Ugandan, 28 U.S. planning for, 364, 365
U.S. pro-democratic, 28 U.S. soldiers killed in, 389
window of opportunity after, 188 U.S. transitional government in, 126
Iraq, 2 war crimes tribunals, 239
Abu Ghraib prison, 6, 51, 219, 323 winning in, 135
anti-Coalition sentiment in, 324 Iraq Relief and Reconstruction Fund,
authoritarian misrule of, 162 371“372
Baath party repression in, 126 Iraq War, 19, 46“50
Brookings Iraq Index, 52 U.S. poor planning for, 364
Bush, George W., planning for, 367 weak political support for, 49
coalition government possibility for, 131 Iraqi Armed Forces, 164
coalition opposition to, 127 Iraqi Kurds, 38, 39
Coalition Provisional Authority, 127, 142 Irish Centre for Human Rights (ICHR), 197,
constitutional politics of, 117 221
constitutional process of, 96, 130 ISAF. See international security assistance
continuing problems in, 68 force
de-Baathi¬cation efforts in, 163 Islam, 123
democracy challenges of, 124 Italian Carbinieri, 150
detention problems of, 219, 220
disbanding combat forces in, 168 Jaka, Alhaji Jusu, 294
ethnic federalism of, 131 Japan, 98, 140
ethnosectarianism in, 131 Jensen, Erik, 230
foreign debt of, 125 Johnson-Sirleaf, Ellen, 101
genocide and, 302 JSMP. See Judicial System Monitoring
Governing Council of, 127“128, 302, 381 Programme
government™s collapse, 125 judges
international interventions in, 16, 86 of Afghanistan, 229, 233
interveners/spoilers of, 162 appointment of, 230“234
judicial appointments in, 234 associations, 332“333
Kurds of, 96, 125 of Bosnia, 232
Kuwait invaded by, 30, 125 changing attitudes of, 240
lack of WMDs in, 50 contributions of, 238
linguistic/cultural differences, dif¬culties dif¬culty ¬nding experienced, 237, 239
of, 322 of East Timor, 232
looters in, 145“146 of Iraq, 234
military collapse of, 366 of Kosovo, 231“232
oil reserves of, 125 as mentors, 237
Persian Gulf War cease¬re violations of, 47 misconduct of, 235, 236
pursuing spoilers/making enemies, premature empowerment of, 235“236
162“165 Regulation One non-acceptance by, 317
rebuilding rule of law in, 9 of Sierra Leone, 231
returning nationals in¬‚uence on, 383 training of, 234“235, 342
rule of law lacking in, 56 UNMIK appointment of, 238, 384
security goals of, 163 UNTAET appointment of, 238
Shiites of, 96, 125, 129 Judicial System Monitoring Programme
Special Tribunal for Crimes Against (JSMP), 201“202, 243“244, 330
Humanity of, 302“304 CAVR work evaluated by, 330
Sunni Triangle, 163 funders of, 331
403
INDEX

Judicial Training Center (East Timor), 235 Kosovo, 2. See also United Nations Mission
judiciary in Kosovo
of Afghanistan, 124, 229 Albanians of, 52, 112
corruption of, 137, 241 biased trials of, 274
increasing transparency of, 242“243 blueprint for, 113
political in¬‚uence of, 241 Bosnian-style consociationalism in, 112
post-con¬‚ict strengthening of, 230“235 CIVPOL in, 148
reform of, 314 collapse of state-authority, 138
of Rwanda, 273 Constitutional Framework for Provisional
strengthening of, 236 Self-Government in, 115“117
support of, 240“242 criminal networks of, 90
UNMIK™s establishment of, 320 DDR program of, 148
justice democracy™s progress in, 98, 113
access problems, 244 detention facilities in, 320
goals of, 255 divisions within, 106
ICTR and, 272 ethnic divisions within, 276
independence as, 278 ¬nal status, 103, 113“115, 117
for perpetrators, 255 humanitarian catastrophe in, 36
transitional, 141, 253, 256 humanitarian intervention dilemma of,
triad, 184, 185 35“40
victor™s, 293 hybrid tribunals of, 274“278
justice system(s) ICTY™s impact on, 265“268
of Bosnia, 226 incapacitated judicial system of, 276
building fair, effective, 178, 181, 183 Interim Agreement for Peace and
capacities needed in, 184 Self-Government in, 112
criminal, 184 international tribunals of, 254
dispute resolution mechanisms, 245 intervener™s problems in, 195, 208
NGOs indispensable role building, 330 intervention and UN Charter, 38
predatory politics™ in¬‚uence on, 179 intervention phases in, 382
prisons and, 222“223 intervention in, 5, 6, 16, 34, 114
strategic assessment of, 191 judicial appointments in, 231“232
synergistic approach to, 181“184, 188, judicial misconduct in, 235
349“350 KFOR™s arrival in, 208
transformation of, 243 KLA of, 8, 208
unbalanced reform in, 217“218 lack of agreed-upon law in, 316
linguistic/cultural differences, dif¬culties
Kabbah, Ahmad Tejan, 158 of, 322
Kallon, Morris, 289 minority rights and, 111“117
Kambanana, Jean, 263“264 NATO in, 19, 27, 33, 50, 170, 195,
Karadzic, Radovan, 264 312
Karzai, Hamid, 97, 120, 122“123, 209 organizations collaborating in, 63
KCS. See Kosovo Correctional Service parallel justice system of, 277
Kellog-Briand Pact, 21 planning/coordination pillars, 361
KFOR. See Kosovo Force police of, 203
KLA. See Kosovo Liberation Army political bargains of, 87
Kleinfeld, Rachel, 73 political system of, 113
on rule of law, 181, 182 prison reform in, 223
Korea, 28 problems remaining in, 66
Kosovar Albanians, 52, 112 progress in, 170
constitutional process of, 92“95, 380 protectorate status of, 113
ethnic cleansing campaign against, 316 Rambouillet agreement, 112
Kosovar Serb reconciliation with, 113 rule of law promotion in, 62, 322
NATO and, 325 Serb authorities withdrawal from, 112
Regulation One rejected by, 318 Serbs of, 112, 113
Serbian oppression of, 317 64 panels of, 276, 277
UNMIK reputation with, 319 strengthening rule of law in, 187
western interventions welcomed by, 380 unlearned lessons of, 322
404 INDEX

Kosovo (cont.) legal codes, 192“193
“victors justice,” 276 legal education
women police in, 210 investing in, 333“334
UN Mission in Kosovo (UNMIK) 102, role of, 15
104, 112 legal theorists, 77
UN Resolution 1244, 113 legislatures, assistance to, 200, 201
Kosovo Correctional Service (KCS), 223 legitimacy
Kosovo Final Status: Options and constitutional, 86
Cross-Border Requirements (U.S. democratic, 93
Institute of Peace), 114 Interim Government of National Unity
Kosovo Force (KFOR), 37, 114, 170, 208 (IGNU™s), 100
detainees held by, 220 intervention™s, 12, 18, 52“53, 65
Kosovo Liberation Army (KLA), 8, 208 police challenges of, 207
Kosovo Police Force, 211 Levitte, Jean-David, 48
Kosovo Police Service (KPS), 170, 208 liberal imperialists, 3
Kosovo Police Service School (KPSS), 208 Liberia, 2. See also All Liberia Conference;
Kosovo Protection Corps, 170 National Patriotic Front of Liberia
Kouchner, Bernard, 316 civil society activists of, 101
KPS. See Kosovo Police Service civil war in, 90
KPSS. See Kosovo Police Service School corruption in, 101
Krstic, Radislav, 264 death statistics of, 170
Kurds, 96, 125 disarmament statistics, 171
Kuwait, Iraq™s invasion of, 30, 125 ECOMOG forces in, 157
ECOWAS and, 33, 34, 99
Latin America, 25 elections of, 99“102
abuse of power in, 61 GEMAP of, 101
restoring rule of law in, 62 international interventions in, 5, 16
rule of law promotion, 65 interveners in, 102
law. See also international law; rule of law mercenary politics of, 100
of armed con¬‚ict, 26 National Transitional Government of, 101
coercion v., 313 Nigerian-led forces in, 19
criminal, 192, 193 peace agreement, 101, 165
doubt of, 311 peace operations termination, 377
entrenched attitudes toward, 312 reconstruction process of, 381
equality before, 182 regional security problem of, 102
formalistic approach to, 318 rule of law lacking in, 56
government bound by, 181 Taylor™s invasion of, 99
implementation of, 202 U.N. peacekeepers deployed to, 101
improving national, 196 western democratic governance imposed
Kosovo™s lacking agreed-upon, 316 on, 378
meaningful dissemination of, 202 Libya, 102
normative commitment to, 75 Lijphart, Arend, 107
question of applicable, 192 Linton, Suzannah, 237
reasons people obey, 310 Lome Accord, 251
law enforcement capacity, 226 Lopes, Aniceto Guterres, 285, 286
law-making, reforming process of, 199“202
law reform, goals/challenges of, 193“195 Mani, Rama, 205
law school clinics, 74 marginalized groups, 16
Lawrence, T. E., 376 McCool, Carolyn, 94
lawyers media
rule of law programs and, 314 interveners and, 345
training of, 342 strengthening of, 341, 344
League of Nations, 21 mediators, role of, 339“340
Covenant of, 21 Middle East, 6, 76
legal advocacy, 74 Middle East Partnership Initiative, 63
The Legal Basis for Preemption (Taft), 46 military
405
INDEX

constabulary forces, 150, 151 National Strategy for Victory in Iraq, 164
enhancing security capability by, 149“151 National Transitional Government, 101
French Gendarmerie, 150 NATO. See North Atlantic Treaty
Haiti™s dismantling of, 146 Organization
Italian Carabinieri, 150 NCC. See National Consultative Council
post-con¬‚ict role of, 154 NED. See National Endowment for
slow adjustment by U.S., 144 Democracy
Spanish Guardia Civil, 150 New Zealand Department of Corrections,
state reliance on, 147 224
unpreparedness of, 144 NGOs. See nongovernmental organizations
U.S. Special Forces, 151 Nigeria
military interventions ECOMOG dominated by, 158
government restructuring and, 134 Liberia and, 19
in Haiti, 5, 16, 67 1977 Protocols, 25
human rights principles and, 13 non-elites, court/governance access of, 341
humanitarian, 8 non-governmental actors, 4
imperialism compared/contrasted with, 3 nongovernmental organizations (NGOs)
in Iraq, 2, 5, 6 citizen empowerment by, 260
motives behind, 3 constructiveness/destructiveness of, 331
order restored via, 144 global network of, 29
triggering of, 86 human rights advanced by, 197
U.N. Charter™s rules restricting, 27 Hussein™s thwarting of, 332
U.S.-Afghanistan, 2 interveners catered to by, 332
U.S.-Iraq, 2 judicial reform promoted by, 226
Milosevic, Slobodan, 35, 263“264, 268 justice system building by, 330
minority rights, 75, 106“117 law-related, 63
Mission Implementation Plan, 111 legal advocacy, 74
Mladic, Ratko, 264 role of, 15
model codes, 197“199 rule of law fostered by, 342
Model Detention Act, 221 of Sierra Leone, 298
Monrovia, ECOMOG securing of, 99 support for, 201, 243“244
Monteiro, Longuinhos, 283 women aided by, 331
multilateral treaties, 25 Norman, Sam Hinga, 293, 296
Muslims, 89, 107, 109 norms
mutual veto, 107 accountability, 260“261, 263
cascades, 261
nation-building, 29, 30 democracy, 2

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