In order to support policymakers and practitioners engaged in security governance and human security efforts in conflict and postconflict nations, SPL is examining the status of Rule of Law initiatives and asking how and why certain approaches succeed and whether best practices can be identified and communicated.
As part of this project, SPL is developing an After-Action Report on the US government’s Rule of Law programs in Iraq and Afghanistan during operations Iraqi Freedom and Enduring Freedom (OIF and OEF). Its purpose is to recount what was suppose to happen, what actually happened, and what observations, insights, and lessons there are for future Rule of Law initiatives.
The project also will provide a repository of after-action reviews from armed forces, other government entities, and NGOs. It will serve as a hub for research and collaboration on a methodology for future Rule of Law initiatives, which have become an indispensable part of governments’ foreign policy and development strategies.
The assertion that the use of force is only a temporary solution in matters of governance is now commonplace after the post-Sept. 11, 2001 wars. Broadly speaking, civilized governance is characterized and best imposed not through force, but through institutional mechanisms, the most important of which is adherence to the Rule of Law. Yet, Rule of Law implementation operations in postconflict nations have experienced both successes and set-backs in recent years.
The central goal of this project is to review and analyze rule of law efforts in postconflict environments undertaken by the US, often in tandem with United Nations organizations and members of the international community, where such initiatives are playing a role in peacebuilding and reconstruction initiatives, particularly in regions recovering from political crises and violence. Our initial grasp of US rule of law initiatives in Afghanistan and Iraq suggests three preliminary observations:
- The rule of law concept is clarified in implementation.
- The most stubborn challenges to rule of law initiatives are revealed in local cultural contexts.
- Success stories do exist.
The project’s goals reflect a commitment to engaging the public sphere in contemporary policy discussions and examining the wealth of understudied assessments produced over the last decade by U.S. armed forces law initiatives. Our second goal remedies an academic-practitioner communication gap by synthesizing the work of scholars who study rule of law in legal and security studies with the recent work of practitioners engaged in advancing state capacity and legal reform initiatives in politically unstable environments. There is no question that scholarly contributions to legal capacity, postconflict justice, and legal reform programs today are critical. Yet, there are missing links and mechanisms—avenues for regular, interdisciplinary discussions, opportunities for receiving feedback, venues for program evaluations and sharing data and analysis—whereby academics and practitioners might better learn from each other, advance each other’s work, and, at the very least, understand the constraints and limits involved in rule of law research and practice.
The project’s third goal examines the results from hard-won operational lessons learned by U.S. military legal practitioners in recent interventions in Afghanistan and Iraq, as well as from the additional six nation-building initiatives the United States has embarked upon since 1991—not to mention Libya. Members of the armed services, particularly, Judge Advocates (JAs) and enlisted paralegals, often working in tandem with US Agency for International Development (USAID), U.S. Institute of Peace (USIP), and “civilian surge” members of the U.S. State Department, offer a critical and often understudied lens on the record of recent U.S. rule of law initiatives.
Comprehensive reports from the U.S. Army’s Center of Law and Military Operations (CLAMO) at the Judge Advocate General’s Legal Center and School Library in Charlottesville, VA, for instance, provide a systematic approach to “legal lessons learned” by military legal servicemembers engaged in U.S. Afghanistan and Iraqi operations and beyond—including determining the applicability of the law of armed conflict to nonstate terrorist actors, aiding in developing rules of engagement for nonconventional adversaries, standing up rule of law initiatives, and providing legal assistance and military justice in theatre.
These insights and experiences, many of which have informed closed national security policy discussions and military doctrine, have not been adequately understood or integrated into academic research in security and legal studies or in broader national public discourse. This lost opportunity for stock taking and self-assessment—critical activities given the serious national investments that accompany postconflict reconstruction efforts—also forestalls analyzing in rigorous ways both mistakes and successes helpful to advancing future rule of law programs. That is, at their best, rule of law programs are not only a fundamental means to build governance and stability but play an irreplaceable role in conflict transition and transformation, particularly in regions without strong rule of law traditions, and thus represent a precondition for security.
Furthermore, this project seeks to understand how scholars and US rule of law program practitioners, particularly in Afghanistan and Iraq, have come to identify the multifaceted challenges posed in conflict and postconflict settings by the complexity and diversity of local cultural legal norms and systems. Such problems include the existence of multiple legal frameworks (domestic, international, tribal, custom, religious-based norms); the compatibility of legal systems; the role of religion, politics, interests group factions, and the international community itself in developing and legitimizing legal systems and norms.
In the case of Afghanistan, for example, several rule of law systems existed at the time of U.S. intervention, including the Pashtun system of dispute resolution based on mediation, honor, and consensus; Taliban imposed variations of Islamic or shari’a law, affecting penalties accorded for wrongdoing; and varied and often informal local cultural tribal systems of law, conflict resolution, and sharia interpretation. With the initiation of state-building programs, a third legal system appeared—state law—a key challenge of which was its often corrupt, inefficient, and ineffective means to deliver criminal and civil solutions.
Likewise, in accordance with the ‘lead-nation’ approach to reconstruction, Italy was given responsibility for rebuilding the Afghan judicial system, with the anti-mafia magistrate and former executive director of UNDOC, Giuseppe Di Gennaro, developing the Afghan criminal procedure code. This code has been controversial due to the limited input and support for the initial draft from Afghan justice institutions and its subsequent adoption only under strong external political pressure. In many respects, this legal complexity is typical in transitioning states, and, thus, a core challenge of rule of law and postconflict reconstruction efforts more generally, particularly in the Middle East and North African region where the majority of rebuilding initiatives are now occurring. Taking local contexts seriously in such rebuilding efforts is clearly a requisite for sustainable and lasting stability and progress.
- What is the relationship between insecurity and rule of law?
- Why is there a poor prognosis for rule of law in insecure environments and how does this depend upon definitions of rule of law? (i.e., security in Taliban controlled areas).
- What rule of law capacity-building program initiatives have the US armed forces community engaged in and undertaken in Afghanistan and Iraq within the last decade? How have these fared and are there current means to evaluate their success, results, or implications?
- Have US armed forces strategies for rule of law initiatives changed in light of the challenges of Iraq and Afghanistan?
- What are the most common barriers or obstacles in attempts to strengthen rule of law in Afghanistan and Iraq, including local cultural and legal norms, human capital, training, and education deficits, poverty and developmental issues, etc.?
- Has the military/Army/JAG corps has gone through a ‘learning curve’ on these issues? Are there useful legal, reform, transition programs and or mechanisms that have helped?
- Are local cultural contexts and legal traditions factored into rule of law concepts, initiatives, and programs?
- How have practitioners and scholars dealt with legal compatibility and convergence issues—between domestic, Islamic, and international law, between state and tribal legal norms and systems?
- What role does the broader rubric of Islamic law and its relationship to international law play in these issues?
- Given the recognition of the importance of local cultural knowledge, how do rule of law practitioners negotiate the well-known difficulty of grafting rule of law standards on another nation’s own often underdeveloped, fragmented, or localized rules and laws?