i

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iii

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v

Strategic Studies Institute

and 

U.S. Army War College Press

EXIT STRATEGY: RULE OF LAW 

AND THE U.S. ARMY

Shima D. Keene

September 2018

The views expressed in this report are those of the author and 

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vi

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ISBN 1-58487-789-8
vii

FOREWORD

The nature of warfare has changed. The U.S. Army 

has to operate in an environment that is uncertain and 

complex, where states, transnational organizations, 

and nonstate actors work collaboratively to serve their 

own self-interests. Consequently, warfare is no longer 

simply about winning the firefight. This is particularly 

the case when operating in fragile or failed states where 

governance is poor or lacking. In these situations, the 

United States and its allies must engage in peacekeeping and post-conflict state rebuilding to ensure that 

long-term stability is achieved. A key part of achieving 

that stability is to ensure that rule of law is established 

and maintained.

As British academic and practitioner Dr. Shima 

Keene articulates in this monograph, ensuring the 

establishment of effective and sustainable rule of law 

institutions plays an important role in stability operations, which should form a key part of the U.S. Army’s 

strategy for disengagement once those operations 

are complete. Critically, Dr. Keene underscores that 

it should also form an integrated part of post-conflict 

planning before intervention is even considered. 

Dr. Keene is a subject matter expert in asymmetric 

warfare and counterterrorism, and through her work 

for the United Kingdom Government’s Stabilisation 

Group, she has worked with the military as well as 

nongovernmental organizations (NGO) and government departments which has enabled her to develop 

deep insights into the subject. Drawing from lessons 

identified in theaters such as Afghanistan and Iraq, she 

warns of the second and third order effects of military 

interventions that have inadvertently damaged rule of 

law institutions in the medium and long term, which 

must be avoided in future military engagements. 
The Strategic Studies Institute (SSI) considers 

that this monograph provides a useful assessment of 

the key issues relating to the role that the U.S. Army 

should play in its contribution to establishing rule of 

law in post-conflict states, and is a valuable addition to 

the debate on how to plan and shape future U.S. peacekeeping and state-building missions.

DOUGLAS C. LOVELACE, JR.

Director

Strategic Studies Institute and

U.S. Army War College Press

viii
ix

ABOUT THE AUTHOR

SHIMA D. KEENE is a British academic and practitioner specializing in defense and security. She is 

a director of the Conflict Studies Research Centre, 

Oxford, and a senior fellow at the Institute for Statecraft, London. Dr. Keene is also a deployable civilian 

expert for the United Kingdom (UK) Government’s 

Stabilisation Group specializing in security and justice. She is a former senior research fellow and adviser 

at the Advanced Research and Assessment Group, 

Defence Academy of the United Kingdom, and special 

adviser to the UK Ministry of Defence (MoD).

Dr. Keene advises and works closely with a number 

of UK Government departments and law enforcement 

agencies to include the MoD, Foreign and Commonwealth Office, the Home Office, Department for International Development, Her Majesty’s Treasury, and the 

National Crime Agency (NCA), as well as a number of 

regional law enforcement agencies. Outside the United 

Kingdom, she works with international organizations 

to include the North Atlantic Treaty Organization, the 

Organization for Security and Co-operation in Europe 

and the Council of Europe, as well as U.S. Government 

departments, the military, and law enforcement agencies. Dr. Keene has 27 years of practitioner experience 

obtained through investment banking, defense intelligence, and academia, and is a former British Army 

Reservist soldier with 7 years military service, most 

of which was spent with 4th Battalion, the Parachute 

Regiment.

Dr. Keene has published numerous internal and 

external government and corporate reports, as well as 

award winning academic journal articles, and is the 

author of Threat Finance: Disconnecting the Lifeline of 
Organized Crime and Terrorism and a book chapter in the 

Research Handbook on International Financial Crime. She 

is a visiting lecturer at the BPP Law School, London, 

and the Centre for Development Studies, Cambridge 

University. Dr. Keene holds a Ph.D. in international 

criminal law, an M.Phil. in defence and security studies, and graduated with honors in business studies.

x
xi

SUMMARY

Establishing the rule of law is a key goal and end 

state in counterinsurgency (COIN) operations and 

is a critical aspect of securing peace and preventing 

future conflict. To that aim, the development of rule of 

law institutions, such as an effective police force and 

a judicial system capable of protecting human rights 

and promoting justice, is essential. As such, ensuring 

the establishment of effective and sustainable rule of 

law institutions plays an important role in stability 

operations, and should form a key part of strategy for 

disengagement once those operations are complete. 

Critically, it should also form an integrated part of 

post-conflict planning before intervention is even considered. The lessons of not considering this aspect of 

drawdown and withdrawal are clear from Afghanistan and Iraq.

This is important and relevant to the U.S. Army, 

as well as to U.S. security and foreign policy interests more broadly, for two reasons. The first relates 

to homeland security. If the country in question is 

unable to maintain its own security, this volatility is 

likely to become a breeding ground for international 

terrorism and transnational crime, which in turn will 

pose a security threat to U.S. citizens both at home and 

abroad. The second relates to demand on U.S. Army 

resources. Further instability in a country with a U.S. 

presence invariably leads to a demand for greater Army 

resources to be allocated. As the U.S. Army is already 

under pressure to regenerate capacity for stability 

operations, it is in its interest not to have to redeploy to 

any given country. However, recent experience in theaters such as Afghanistan has shown that establishing 

effective rule of law institutions and practices is not a 
xii

straightforward task. Consequently, considerations as 

to how and when rule of law institutions can start to be 

developed and integrated into the stability transition 

process must not only be planned in advance, but also 

form part of the U.S. Army’s strategy from the very 

start of any military intervention.

One of the biggest challenges for countries emerging from conflict is the transition from military to 

civilian rule, requiring a shift in capability, skills, and 

mindset. This is especially true for institutions such as 

the police who will be required to change from serving a combat function to performing a more traditional 

policing role. Consequently, the U.S. Army, along 

with its international partners deployed to provide 

assistance and mentoring to those organizations, must 

not only recognize the challenges but also take active 

steps to ensure that their approach and actions address 

rather than exacerbate these problems. An inability to 

take effective action will lead to unintended consequences. However, any action taken will require an 

in-depth understanding of the challenges that exist in 

the rule of law landscape, both in terms of a contextual 

understanding of the fragile state in question, and with 

respect to the response being provided by the international community.

This monograph identifies a number of issues in 

relation to the challenges in establishing rule of law 

institutions and practices in post-conflict countries, as 

well as how and when rule of law mechanisms could 

be integrated into U.S. Army stabilization operations, 

based on lessons identified from recent stabilization 

missions and deployments. These include the ability to identify the key challenges which prevent the 

establishment of effective and sustainable rule of law 

institutions, as well as to understand the unintended 
xiii

consequences of U.S. Army interventions in training 

local police forces, and how these can be mitigated or 

avoided. In addition, an appreciation of the conflict or 

confusion between COIN and state-building missions 

and how this conflict can undermine both operations 

is necessary. Furthermore, in the context of achieving 

medium to long-term objectives, consideration must 

be given to the sustainability of rule of law interventions after withdrawal of troops as well as the impact 

of short-term mission objectives. 

To that end, U.S. Army commanders must determine what role the U.S. Army should play in facilitating a transition from military to civilian rule of law. 

This may include giving consideration to how the U.S. 

Army could better utilize its Reserve forces to provide 

capacity and specialist skills to facilitate civilian transition, and determining when and how rule of law mechanisms and advisors should be integrated into stability 

operations. Finally, the importance of effective engagement with partner agencies and institutions is highlighted. Collectively, the analysis will assist the U.S. 

Army, and more broadly the Departments of Defense 

and State, in better facilitating a seamless rebalancing 

from military to police functions in post-conflict environments, to ensure that sustainable and effective rule 

of law interventions are delivered as part of an exit 

strategy from COIN campaigns.

1

EXIT STRATEGY: RULE OF LAW 

AND THE U.S. ARMY

INTRODUCTION

Establishing the rule of law is a key goal and end 

state in counterinsurgency (COIN) operations and is a 

critical aspect of securing peace and preventing future 

conflict in a fragile state. To that end, the development 

of rule of law institutions, such as an effective police 

force and a judicial system capable of protecting human 

rights and promoting justice, is essential.1 As such, the 

establishment of effective and sustainable rule of law 

institutions and practices as part of overall rule of law 

interventions is critical to stability operations, and 

should form a key part of military exit strategies for 

countries operating in post-conflict states. The lessons 

of not considering this aspect of drawdown and withdrawal adequately are clear from recent theaters of 

conflict such as Afghanistan and Iraq. This is important and relevant to the U.S. Army, as well as to U.S. 

security and foreign policy interests more broadly, for 

two reasons. The first relates to homeland security. If 

the country in question is unable to maintain its own 

security, one likely consequence is that it will become a 

breeding ground for international terrorism and transnational crime. This in turn will pose a further security 

threat to U.S. citizens, both at home and abroad. The 

second relates to demand on U.S. Army resources. As 

the U.S. Army is already under pressure to regenerate capacity for stability operations globally, it is in its 

interest not to have to redeploy to any given country.

The importance of establishing rule of law is recognized by the U.S. Army, especially in the context of 

COIN operations. The term “rule of law” is mentioned 
2

39 times in the U.S. Army COIN field manual, including a section on how to establish rule of law in host 

countries.2 U.S. Army doctrine as well as literature 

relating to stability and peacebuilding accepts that the 

creation of a state which is stable and secure, and capable as well as willing to counter terrorism and other 

direct threats to the United States and its allies, is in the 

interest of U.S. homeland security and international 

security more broadly. Furthermore, as part of the promotion of stability and security in post-conflict states, 

the establishment of effective and sustainable civilian 

security and rule of law institutions has been recognized as being of paramount importance.

At the same time, a need to improve the approach 

to building rule of law in post-conflict fragile states has 

also been acknowledged.3 There is evidence to suggest 

that many interventions, no matter how well intentioned, result in unintended consequences, which can 

be damaging at many levels. Therefore, it is important for the U.S. Army and its partners to understand 

why and how these unintended consequences are 

occurring, as well as how they can be prevented in 

the future. Part of the answer lies in the challenge of 

operating in fragile environments in the process of 

transitioning from conflict to stability. The extent of 

the challenges brought about by a prolonged period 

of conflict and its impact on state infrastructures and 

cultural attitudes are often not fully taken into consideration. This becomes problematic when policies and 

practices designed and developed for stable environments are attempted to be replicated in post-conflict 

states.

For example, one of the biggest challenges for 

countries emerging from conflict is the transition from 

military to civilian rule, requiring a shift in capability, 
3

skills, and mindset. This is particularly true for institutions such as the police who will be required to change 

from serving a combat function to performing a more 

traditional policing role. Consequently, the U.S. Army, 

along with its international partners deployed to provide assistance and mentoring to those organizations, 

must not only recognize the challenges but also take 

active steps to ensure that their approach and actions 

do not exacerbate these problems. To that aim, they 

must be able to understand as well as anticipate and 

mitigate the unintended consequences of their actions.

For the U.S. Army, establishing rule of law is a key 

component of stability missions, which in turn forms 

an important strand of its overall COIN campaigns. 

However, COIN campaigns are challenging in that 

they involve a mix of offensive, defensive, and stability 

missions conducted along multiple lines of operations. 

Soldiers are expected to not only perform the role of 

warriors but also that of nation builders, the latter 

requiring military personnel to perform tasks requiring skill sets more commonly associated with nonmilitary agencies. A further challenge is that establishing effective and sustainable rule of law institutions 

and practices is a far from straightforward task and 

takes considerable time to achieve. Consequently, considerations as to how and when rule of law institutions 

can start to be developed and integrated into the stability transition process must not only be planned in 

advance, but also form part of the U.S. Army’s strategy 

from the very start of any military intervention. Critically, it should also form an integrated part of post-conflict planning before intervention is even considered.

A further consideration is that the U.S. Army is not 

operating in this space alone. This can be seen as both 

an advantage and a disadvantage. It is advantageous in 
4

that the responsibility of providing assistance in developing rule of law institutions does not, and should 

not, fall on the shoulders solely of the U.S. Army. It 

has partners that can share this burden, in terms of 

resources—financial, intellectual, and physical. The 

downside is that in any multi-stakeholder situation, 

implementation both at a strategic and tactical level 

can be made more complex and cumbersome. This is 

even more apparent when working with partners who 

have a non-military outlook due to differences in organizational culture and perspective—for example, with 

differing views on how strategic objectives should be 

accomplished and the ways in which success is measured. In addition, the more challenging the circumstances become in terms of differing organizational 

perspectives and goals, the greater the tendency to 

work in silos. This situation can often be further exacerbated by security conditions on the ground, which may 

restrict the ability for physical movement, making the 

ability to meet with partners in person more difficult. 

This further increases the temptation for stakeholders 

to focus on the delivery of their own organizational 

missions and agendas without adequate consideration 

to the bigger picture.

Another downside of this silo approach is the 

unintended consequences that can arise where steps 

taken by one partner, military or civilian, can impact 

the success of other projects and missions, directly 

influencing the effectiveness of interventions. As such, 

deconfliction measures must be in place to ensure that 

stakeholders are communicating with one another 

effectively, and can agree as much as possible about 

the role each should play in providing assistance to 

the host nation. In addition, clear objectives and goals 

must be decided in terms of how effective rule of law 
5

can be established in a way that is sustainable in the 

medium to long term. This can only be achieved if the 

host country is actively involved, becomes part of the 

process, and takes ownership of the challenges.

Although each post-conflict setting is arguably 

unique, many of the challenges witnessed reappear 

repeatedly in different theaters. Lessons are often 

identified only to be forgotten, the result of which is 

that organizational knowledge is lost and the wheel is 

reinvented with each new mission. This wastes time, 

money, and lives, as well as damages reputations. It is 

therefore of paramount importance that the universal 

lessons are not only identified, but also absorbed and 

applied to future campaigns, in order to avoid likely 

pitfalls. This will in turn ensure future missions are 

more successful not only in the short term, but also in 

the medium and long term. There is evidence to suggest that lessons identified from one theater of conflict 

are relevant and applicable to another if the analysis 

can be adapted and applied intelligently with a degree 

of flexibility.4

One notable lesson, which repeatedly emerges 

from multiple theaters, is inadequate consideration 

as to how the international community (including the 

U.S. Army) can extricate itself once it has intervened 

in the affairs of a particular country. The term “exit 

strategy” is frequently used, but is rarely clearly articulated in terms of what that strategy is and how it is to 

be achieved. Furthermore, to enable the U.S. Army to 

exit the intervention, clarification is needed in terms of 

identifying the conditions required before implementation of the strategy can begin.
6

EXIT STRATEGY

In recent years, the U.S. Government and its Armed 

Forces have come under criticism for allowing itself to 

become engaged in interventions on foreign soil, with 

little consideration as to how to end those engagements.5

 Afghanistan and Iraq both serve as good examples of interventions that appear never-ending, which 

is problematic militarily and politically. Therefore, 

irrespective of whether military action takes the form 

of force, peacekeeping, development, or all three, a key 

challenge facing U.S. military commanders and policy 

makers is to decide when and how to stop and get out. 

Such decisions can only be made if an exit strategy 

exists in advance.

The term “exit strategy” was popularized by the 

Clinton administration in the 1990s as a policy option 

that exercised boundaries in terms of the time and effort 

the United States as a nation was willing to expend 

on a military intervention.6 Despite extensive use of 

the term in government literature and military doctrine, an exact meaning has never been defined.7

 This 

has often led to some confusion as to what is actually 

meant in practical terms, especially when the phrase is 

used interchangeably with the term “end state.” This 

can be problematic because desired end states differ 

according to perspective. In other words, military end 

states are likely to differ from government end states, 

which will be politically based with wider diplomatic 

and strategic implications of which the military is one 

of several components.

One challenge for the U.S. Army is that military 

objectives are based on concrete deliverables, articulated through clearly definable achievements accompanied by precise measures to plan and achieve the 
7

required end state. Although military end states are 

flexible to reflect the dynamic situation on the ground, 

they are nevertheless clearer compared to policy or 

diplomatic end states. However, where military forces 

are operating in a capacity other than warfighting, the 

end state is commonly expressed in political terms. 

This can be challenging in that fluid concepts are a 

poor fit with military culture. Furthermore, such objectives cannot be achieved by the military alone as they 

lie beyond its competence. Another challenge is that 

an exit from post-conflict non-combat intervention is a 

transitional process as opposed to an event.

In this context, the role of the military is to facilitate the political process.8

 This is highly relevant in 

establishing rule of law, which encompasses definable 

concrete deliverables in terms of how security institutions can be set up and developed to enable rule of 

law to take hold. At the same time, it is also a highly 

political process. Politics at the local and international 

levels play an enormous role in determining the pace 

of an exit strategy and the continued involvement of 

an intervening actor in state building. The case of Iraq 

illustrated that U.S. Armed Forces lacked adequate 

knowledge of the local actors at the time they invaded 

and began the process of state building which led to 

a bloody sectarian war and a long, drawn-out battle 

with insurgents.

For the desired end state of rule of law to be established, military leaders must be mindful that it is 

this transition process that is central to achieving the 

required end states, both military and political, and 

that this process necessitates awareness of wider issues 

if it is to have any chance of success. 
8

WHAT IS MEANT BY THE RULE OF LAW?

The “rule of law” is an inherently vague term, which 

has no universally agreed definition.9 This is relevant 

to the U.S. Army in that it highlights the challenge of 

rule of law interventions at a fundamental level. In 

other words, if there is no collective agreement as to 

what is meant by the rule of law, how can rule of law 

interventions be expected to be developed, yet alone 

delivered successfully? The challenge in agreeing to a 

definition stems partly from the fact that rule of law is 

often expressed in terms of general principles, of which 

there are several. For example, according to legal theorist Lord Bingham,10 the core principle of the rule of 

law is:

that all persons and authorities within the state, whether 

public or private, should be bound by and entitled to the 

benefit of laws publicly and prospectively promulgated 

and publicly administered in the courts.11

In his book “The Rule of Law,” Lord Bingham outlines the eight principles which he saw as being the 

key ingredients necessary to support that aim: 

1. The law must be accessible, intelligible, clear and 

predictable.

2. Questions of legal right and liability should ordinarily 

be resolved by the exercise of the law and not the exercise 

of discretion.

3. Laws should apply equally to all.

4. Ministers and public officials must exercise the powers 

conferred in good faith, fairly, for the purposes for which 

they were conferred—reasonably and without exceeding 

the limits of such powers.

5. The law must afford adequate protection of fundamental 

Human Rights.
9

6. The state must provide a way of resolving disputes 

which the parties cannot themselves resolve.

7. The adjudicative procedures provided by the state 

should be fair.

8. The rule of law requires compliance by the state with 

its obligations in international as well as national laws.12

Similar principles are expressed by the United 

Nations (UN) which defines the “rule of law” as:

a concept at the very heart of the [UN] mission. It refers to 

a principle of governance in which all persons, institutions 

and entities, public and private, including the State itself, 

are accountable to laws that are publicly promulgated, 

equally enforced and independently adjudicated, and 

which are consistent with international human rights 

norms and standards. It requires, as well, measures 

to ensure adherence to the principles of supremacy of 

law, equality before the law, accountability to the law, 

fairness in the application of the law, separation of 

powers, participation in decision-making, legal certainty, 

avoidance of arbitrariness and procedural and legal 

transparency.13

This definition, which has been widely accepted by 

practitioners and policymakers in the rule of law community, describes an ideal end state to work toward, 

one that features a system of government that is transparent and accountable and embodies other checks and 

balances.14 Elsewhere, other organizations have developed their own definitions. That of the World Justice 

Project is based on four universal principles that were 

derived from internationally accepted standards:15

1. Accountability. The government [and its officials and 

agents] as well as [individuals and] private actors are 

accountable under the law.

2. Just Laws. The laws are clear, publicized, stable, and 

just; are applied evenly; and protect fundamental rights, 
10

including the security of persons and property and certain 

core human rights.

3. Open Government. The process by which the laws are 

enacted, administered, and enforced are accessible, fair, 

and efficient.

4. Accessible & Impartial Dispute Resolution. Justice 

is delivered timely [sic] by competent, ethical, and 

independent representatives and neutrals who are 

accessible, have adequate resources, and reflect the 

makeup of the communities they serve.16

Undoubtedly, these slight differences in principles 

outlined, as well as their interpretation can make matters challenging. This is especially true in the context 

of post-conflict states that often have complex legal 

landscapes. However, it could also be argued that the 

lack of a concrete definition can be advantageous in 

that the guiding principles can be used as a platform 

to negotiate and agree to a definition for each postconflict state. This flexibility must be seen as a positive 

given that every situation is not only different, but is 

also constantly evolving. It would be dangerous and 

inappropriate to use the same definitions, even if one 

were to exist, and apply it to every post-conflict state. 

Instead, this ambiguity forces a case-by-case definition 

to be created and adopted in a way that is fit for purpose, which is more appropriate for a dynamic fragile 

environment.

Nevertheless, a point of reference is necessary. One 

interpretation is that rule of law is where everyone is 

governed by and equal before the law and constitution established by the legitimate government of the 

country in which they live, and that they have access to 

human rights and justice which is open and accountable to independent oversight. A key differential in 

fragile states is the promotion of the rule of law as 

opposed to rule by law. To elaborate, “rule of law” 
11

implies fairness and predictable application, whereas 

“rule by law” describes a situation where the law is 

used to repress the population. One example of the 

latter circumstance is Nazi Germany. In 1935, Adolf 

Hitler announced the Nuremburg laws which institutionalized many of the racial theories prevalent in Nazi 

ideology at the time. These laws excluded German 

Jews from Reich citizenship and prohibited them from 

marrying or having sexual relations with persons of 

“German or related blood,” as well as denying Jews 

most political rights.17 Although predictably and consistently applied, such laws clearly cannot be described 

as fairness or equality of application.

“Rule of law institutions” refers to organizations 

that enable rule of law. They can be described as state 

governance institutions responsible for a number of 

necessary components for the establishment of the 

rule of law. These include the creation of comprehensive laws, a functioning judicial system, effective 

law enforcement agencies capable of enforcing those 

laws, and government departments responsible for the 

administrative aspects that ensure those institutions 

operate effectively.

ESTABLISHING THE RULE OF LAW IN 

POST-CONFLICT STATES

Establishing the rule of law in post-conflict states 

has become a priority for the international community 

in recent years. This has resulted in numerous international and regional organizations, as well as bilateral 

donors and nongovernmental organizations (NGOs) 

becoming engaged in a variety of activities aimed at 

rebuilding or developing criminal justice systems with 

the aim of establishing rule of law. To add to that busy 
12

environment, the justice landscape in a post-conflict 

state is likely to be complex as a result of a prolonged 

absence of rule of law during conflict. Even where 

some form of a state justice system exists, it is likely to 

be largely dysfunctional, resulting in the emergence of 

parallel systems of justice. Consequently the post-conflict rule of law landscape may consist of different systems and subsystems of justice, some operated by the 

state and others not. This presents further challenges 

as rule of law institutions need to be linked and coordinated to be effective. As such, interventions should 

not only be about focusing on building the capacity 

and capability of each component of the justice system, 

but must also be about ensuring that they work well 

together; it is also about building functional relationships between the institutions. For example, there 

is little point in establishing legislation if there is no 

effective law enforcement mechanism. Similarly, even 

if the police are able to make an arrest, if the courts 

are riddled with corruption that results in the offender 

being released, it makes the work of the police meaningless. Again, even where the offender is convicted 

in court, if the penal system fails to retain him, then 

the justice system as a whole has failed, allowing the 

offender to reoffend.

Bearing in mind the importance of interconnectivity, the U.S. Army must ensure it has a broad understanding of the overall rule of law landscape in the 

country where they are operating. It must also develop 

an appreciation of the parallel rule of law intervention landscape consisting of various elements of the 

international community, all attempting to deliver 

assistance to rule of law institutions in that fragile and 

dynamic environment. As a part of that landscape, the 

U.S. Army must develop strong situational awareness 
13

as to who the other players are, as well as the activities 

with which they are involved. The damage that can be 

caused by one partner undermining the other should 

not be underestimated. Although the end goal may be 

the same, the ways and means to reach those goals are 

likely to differ—some may be complementary, others 

may not. This is likely to result in conflicting advice 

given to the rule of law institutions resulting in confusion and ultimately failure. As such, the U.S. Army 

must be prepared to work with a wide variety of institutions and actors to avoid this situation. There needs 

to be more of a focus on results, as opposed to evidence 

of delivery of interventions alone.

Although the U.S. Army has become increasingly 

involved with peacekeeping operations, this is not its 

traditional role, and it is unlikely that all of the knowledge and skill sets required to deliver rule of law 

interventions will exist within the military. U.S. Army 

commanders will be required to determine when, 

where, and how to rely on or employ relevant external personnel to fill this vacuum. Numerous advisers 

exist for this purpose. There are men and women who 

are sent abroad by governments, intergovernmental 

organizations, and NGOs to advise and consult with 

local counterparts on how to develop and improve 

local criminal justice systems as well as to deliver incountry stabilization more generally. These advisors 

are drawn from a variety of professional backgrounds 

to include: the legal profession, the judiciary, the police, 

and academia, as well as NGOs and civil society. Individually and collectively, they have the ability to bring 

with them a broad range of expertise and experience 

to assist the U.S. Army at every level of intervention as 

required.
14

However, in order for the U.S. Army to be able 

to work effectively overall, coordination is key. This 

requires a broad understanding of the elements 

involved in the criminal justice system as a whole, as 

well as the overarching challenges that the U.S. Army 

will face in its attempts to assist in the implementation 

of rule of law in post-conflict states.18 As such, it may 

be prudent for U.S. Army commanders to appoint one 

generalist senior adviser who oversees, coordinates, 

and liaises internally as well as externally. This will 

ensure that the relevant elements of its interventions 

are managed properly and integrated with the work 

of colleagues operating in the same space. Furthermore, he or she must be capable of translating the rule 

of law landscape into a series of executable assistance 

programs that reach achievable benchmarks, demonstrating incremental progress toward the required end 

state.

In order to describe how this could be achieved, this 

monograph will focus on three areas of interest: legislation, law enforcement and police, and the judiciary.

LEGISLATION AND LAW REFORM

For rule of law to prevail, laws must be comprehensive, transparent, and fit for purpose. Equally important is the communication of those laws to citizens, so 

that they know what the laws are, as well as the potential consequences of breaking those laws. As obvious 

as this may seem from a Western perspective, or the 

perspective of any developed nation, the first and fundamental challenge confronting U.S. Army personnel 

who are new to such environments is the absence of 

these norms.
15

Post-conflict states are usually characterized by 

grossly inadequate laws and a general lack of clarity of 

the legal landscape. This may have been caused by an 

accumulation of neglect where the existing laws have 

become outdated or where new legislation is introduced without repealing the old, causing duplication. 

Also during prolonged periods of conflict, as already 

mentioned in the previous section, it is likely that 

alternative nonstate justice systems have developed to 

fill the vacuum in areas where a state justice system 

was lacking, resulting in dual or multiple legal systems to emerge. A case in point is the legal landscape 

in Afghanistan which is occupied by three competing 

sources of law operating simultaneously, namely: the 

formal state legal system reflected in various codes 

and legislation and enforced through a system of state 

courts; the informal customary system based on tribal 

mediation; and the Taliban legal system, based on 

its own interpretation of Sharia law.19 This complex 

system has emerged as a result of hundreds of years 

of informal traditions, Islamic Sharia law, and former 

Soviet judicial practices during the 1980s, as well as 

various Western influences since the fall of the Taliban 

in 2001.

Further confusion of the legal landscape in post-conflict states may have been caused by the existence of 

customary legal systems as well as religion-based legal 

systems as in the case of Afghanistan. In such situations, legal reinstatement may be necessary to identify 

the applicable law, although this is a notoriously challenging process that can be deeply political. Nevertheless, a starting point for establishing rule of law may be 

to reform existing laws in such a way that they become 

compliant with the principles of the rule of law and 

international human rights norms and standards. In 

some cases, a requirement for law reform may have 
16

been included in a peace agreement, as was the case of 

Burundi and Afghanistan, which is therefore binding 

on the parties to the agreement.20

However, to date, the international community’s 

interventions concerning law reform in post-conflict states have suffered a poor track record. What is 

of even more concern is that mistakes made in one 

post-conflict locale are often repeated in others. As an 

influential actor in the international community, it is 

of vital importance that the U.S. Army is aware of past 

mistakes and successes, to be able to reflect and learn 

from them to ensure that future interventions are more 

successful. This cannot be achieved without an appreciation of the broader challenges that face post-conflict 

states in promoting legislation.

The first challenge is that the ability to legislate by 

definition assumes the preexistence of a state. In other 

words, for a state to be able to legislate and apply 

those laws, it must have authority. In order to obtain 

authority, it must be seen as legitimate by its people.21 If a state lacks adequate governance structures 

and is seen as fundamentally corrupt, its legitimacy 

is undermined.22 This in many ways is the proverbial 

“chicken and egg” scenario in that it is not always obvious whether the laws need to be established first, or 

whether a state needs to have authority first in order to 

be able to legislate. The argument for the latter is that 

unless the state is seen as legitimate in the eyes of its 

people, the laws that are created by that government 

will not be enforceable. On the other hand, it can also 

be argued that by establishing the laws first, governance structures will begin to fall into place, which in 

turn will provide the credibility and authority needed 

by the state to establish its authority in order to be able 

to enforce those laws. The reality is that the two are 
17

symbiotic and should develop simultaneously. However, the tension caused by questionable authority and 

legitimacy must be noted.

From the viewpoint of those providing assistance, 

a further issue is that many rule of law development 

projects are based on the flawed assumption that there 

is a legitimate government in the host country seeking to improve governance and suppress violence.23

Unfortunately, there is evidence from multiple theaters to suggest that government officials responsible 

for rule of law may put themselves above the law in 

order to gain wealth through corruption, theft of state 

assets, smuggling rackets, or collusion with criminal 

forces.24 As Kleinfeld and Bader note:

Often, individuals and agencies within the government 

are themselves involved in violent activity, from selling 

police or military armaments to gangs or insurgents to 

extrajudicial killings to moonlighting as members of the 

organizations they officially work to eradicate.25

These factors combined will not only have an 

impact on the legitimacy of that state and the authority 

it needs to be able to create laws that are recognized and 

adhered to, but they will also have an impact on those 

delivering assistance to that state, both in terms of the 

likely success of the interventions they are attempting 

to deliver, as well as their own reputation and safety.26

For example, if the U.S. Army is seen to be assisting a 

regime that is overtly corrupt and engaged in criminal activity through willful blindness to those activities, there is a danger that this could be misconceived 

as endorsement of those acts. There is then a further 

risk that the anger of the populations that suffer those 

injustices may be redirected toward the U.S. Army.
18

Also in providing assistance, extreme caution must 

be exercised to ensure that the West is not imposing its 

own principles and laws on the host country without 

giving adequate consideration to local traditions and 

cultures during the legislative process. This is important, as there are several unintended consequences 

that can emerge as a result of creating laws based on 

Western models. The first is that the newly created 

state laws may be viewed by populations as imported 

Western laws. This can be particularly problematic in 

Muslim countries where compliance with Sharia law is 

a basic necessity for laws to be adopted.

Another challenge in reforming laws to comply 

with international ethical standards is the local society’s perception of what constitutes moral or immoral 

behavior. This is relevant as morality is closely linked 

to the question of legality. Laws are intended to shape 

behavior linked to what are considered to be the fundamental moral codes of behavior.27 A problem emerges 

when behavior that is considered to be immoral in one 

culture is seen as acceptable in another. Matters relating to human rights provide a prime example. U.S. 

Army COIN doctrine recognizes that:

Respect for the full panoply of human rights should be 

the goal of the host nation; [and that] derogation and 

violation of these rights by host-nation security forces, 

in particular, often provides an excuse for insurgent 

activities.28

As such, the human rights agenda supported by the 

UN Declaration on Human Rights and the International Convention for Civil and Political Rights plays 

a key part in U.S. Army rule of law interventions, as 

well as interventions by the international community 

more broadly. However, how effective can these new 
19

laws incorporating human rights agendas be if there 

is no tradition or concept of human rights in the host 

country? Human rights violations carried out by the 

government or its armies and/or police forces are 

the norm in many parts of the world, especially—but 

not restricted to—fragile states. Even where the state 

institutions may not be the direct perpetrators, willful 

blindness is common. 

For example, Human Rights Watch reported that 

Egypt’s epidemic of violence and sexual abuse in 

2013 resulted in more than 600 deaths and 91 women 

assaulted in 4 days of riots at Tahrir Square.29 These 

attacks, where some of the victims required extensive 

medical surgery after being subjected to brutal gang 

rapes and sexual assault, occurred while government 

leaders and police stood by and failed to intervene.30

Elsewhere in countries such as Syria, Sudan, Democratic Republic of the Congo, Pakistan, Somalia, 

Afghanistan, Iraq, Myanmar, Yemen, and Nigeria, 

human rights abuses are widespread.31 In these countries, women and children are often considered to be 

disposable assets as opposed to citizens worthy of 

respect and protection.

Consider the practice of lapidation for the offense 

of adultery. Lapidation, more commonly known as 

stoning, is a method of capital punishment whereby 

stones are thrown at a person until they are dead. 

Stoning is currently legal in 15 jurisdictions, although 

in some of these countries such as Qatar and Mauritania it is rarely invoked.32 In other countries, however, 

stoning may not technically be legal, but it is widely 

practiced, for example, Iraq, Iran, Afghanistan, and 

Mali.33 Although both men and women, in theory, 

can be convicted of adultery, which is punishable by 

lapidation, there is strong evidence of discrimination 
20

against women in those countries. For example, if a 

man is unhappy in his marriage, he is legally able to 

divorce or take other wives dependent on the country 

in which he lives. He is also more likely to have the 

means to employ defense lawyers and enjoy greater 

physical freedom that may allow him to remove himself from the marriage. A woman on the other hand 

often does not have those options, and convictions are 

often made under duress or based on gut feeling as 

opposed to evidence.34 A further injustice is that even 

where a woman has been raped, this may be considered an admission to the crime of zina (sex outside 

marriage) under some interpretations of Sharia law.35

An example from Somalia in 2008 occurred after Aisha 

Ibrahim Duhulow, a 13-year-old Somali girl, was 

raped by three men. When she reported the rape, this 

was interpreted as adultery, the consequence of which 

was that she was buried up to her neck, and stoned in 

front of 1,000 people by 50 men at a stadium in southern Somalia.36

A further illustration of human rights violation and 

gender discrimination relates to how the punishment 

is delivered. In Iran, for example, men are usually 

buried up to the waist and if they are able to escape, 

they are spared. Women or girls are buried up to their 

chests or neck, making any prospect of escape impossible. Stoning contravenes a host of UN treaties including the International Covenant on Civil and Political 

Rights which states that no one should be subjected to 

torture or cruel or inhumane punishment. The treaty, 

which Iran and Pakistan have signed, allows countries 

to execute people only for the most serious crimes. 

Nevertheless, there are reports that since signing the 

treaty women have been executed through lapidation 
21

for offenses to include being in possession of a mobile 

phone.37

Humanitarian abuse is not restricted to the female 

gender. According to a 2009 Human Terrain Team 

study on Pashtun sexuality, the practice of Pashtun 

social norms dictate that raping a boy is not seen as 

un-Islamic or homosexual provided that the man performing the act does not love the boy, in which case 

the sexual act is considered not reprehensible, and far 

more ethical than defiling a woman.38 In Afghanistan, 

the practice of bacha bāzī, a colloquial term meaning 

“boy play” refers to a variety of activities that involve 

child sexual abuse, to include sexual slavery and child 

prostitution in which prepubescent and adolescent 

boys are sold to wealthy or powerful men for entertainment and sexual activities.39 From 1994-2001, under 

Taliban rule, bacha bāzī was an offense that carried the 

death penalty.40 Since the fall of the Taliban, although 

the practice continues to be illegal under Afghan law, 

the laws have seldom been enforced, especially against 

powerful offenders and police who have been complicit in the crimes. Consequently, the practice of bacha 

bāzī has become widespread throughout Afghanistan 

in recent years.41 Furthermore, as many of these human 

right abuses are seen as cultural norms, U.S. Soldiers 

and Marines as well as the international community 

have been instructed not to intervene even when their 

Afghan allies have abused boys on military bases.42

Those who had taken action against the offenders have 

faced disciplinary action and career ruin for disobeying the order to dismiss and ignore the abuse of the 

young boys as traditional cultural practice.43

Despite the fact that the prevention of child abuse 

may have appeared to be a low priority in comparison 

to fighting the Taliban, the U.S. COIN Field Manual 
22

reminds us of the importance of rule of law and the 

protection of human rights.44 Consequently, the U.S. 

Army must not be seen to be endorsing human rights 

abuses by turning a blind eye to such atrocities, especially when the crimes committed are recognized as 

such under local law. It must always be remembered 

that the fundamental purpose of the security forces 

(both military and police) of the host country, alongside which the U.S. Army is fighting and training, is to 

protect its citizens. It is not only about fighting enemies 

such as insurgent groups and criminality in general. As 

such, it is the duty of the U.S. Army to ensure that the 

population, especially the most vulnerable elements of 

society, is not abused by those who are there supposedly to protect them.

In countries where such abuses have become 

accepted as the norm, all personnel (from both U.S. 

and host institutions) should be briefed to ensure that 

they understand what actions constitute human rights 

abuses, and that these human rights abuses are crimes 

for which they will be punished. At the same time, a 

graduated disciplinary system could be introduced 

so that the offenders are given an initial warning and 

provided with the relevant remedial training. This 

provides offenders with the opportunity to understand that what they perceived as normal behavior is 

in fact a criminal act and if they reoffend, that there 

would be consequences from that action. It is essential 

that the U.S. Army enforce this discipline fairly and 

firmly. From a COIN perspective, if the Taliban is considered by local populations as being able to deliver 

better human rights protection (with respect to bacha 

bāzī) by swiftly delivering “justice” in its least corrupt 
23

form, this makes a mockery of any rule of law intervention that the international community is promising 

to deliver.

Furthermore, the U.S. Army must do more to 

ensure that this zero-tolerance policy applies not only 

to offending allies who they may be training in the 

host country, but also to its own personnel, critically to 

include third party contractors. For example, the use 

of bacha bāzī by U.S. private military contractors Dyn

Corp contracted to provide training to the Afghan 

police has been well documented.45 This is hugely 

embarrassing for the United States and calls for better 

supervision by the U.S. Army to ensure that such incidents cannot reoccur in the future.46 As guests of the 

host nation, Soldiers and contractors alike must ensure 

that they behave in a way that is morally acceptable 

by their own national standards as well as the standards of the host nation.

The key lesson is that these challenges cannot 

simply be cast aside as cultural differences. Such 

behavior requires a change in mindset, something that 

cannot be changed overnight. The mission to do so 

becomes one of not only simple legislative change, but 

also of influencing the hearts and minds of people who 

must first accept that practices are immoral in order 

to understand the reason for them being illegal. Only 

then will such laws become effective.

THE JUSTICE SYSTEM

Legislation is only as effective as the justice system 

that enforces it. It does not matter how good laws are 

if the justice system fails to implement those laws. 

The justice system can be defined as the system of law 

enforcement that is directly involved in apprehending, 
24

prosecuting, defending, sentencing, and punishing 

those who are suspected or convicted of criminal 

offenses.47 For the justice system to function properly, 

it must have criminal justice institutions that abide by 

the law, and are capable of implementing the law and 

working efficiently together especially in areas of overlap. For example, police officers must have the skills 

to be able to investigate a crime properly so that evidence can be collected and presented in court. Judges, 

prosecutors, and defense lawyers must have the relevant knowledge of the law and the skills necessary to 

be able to present their case effectively. They must also 

be able to go to court without fear of intimidation to 

carry out their work, which will require courthouses 

to be built in the right locations with appropriate levels 

of security. However, post-conflict criminal justice 

institutions are typically characterized as being underresourced, having low capacity and capability, and 

lacking basic infrastructure. Many qualified personnel 

might have fled or been killed during the conflict. Those 

who remain may be guilty of human rights violations 

or corruption and therefore are generally unsuitable 

for service in the criminal justice system. Nevertheless, 

due to the lack of qualified staff, it is often not possible to find replacement personnel, resulting in the U.S. 

Army having to work with such individuals. Consequently, reeducation and reform must play an important role alongside technical training requirements.

The justice system encompasses a wide number 

of actors responsible for a broad range of activities, 

involving both the formal justice system and civil society. This section will focus on two main institutions 

within the formal justice system, namely the police and 

the judiciary, as this is where the U.S. Army is likely to 

have the closest contact and influence.
25

POLICE

The police as an organization should serve as the 

gateway to justice and security for the population. In 

most countries, a police force is the chief front line law 

enforcement agency, responsible for preventing crime, 

conducting initial investigations of any crime committed, and upholding public order.48 However, during 

times of conflict, police forces in conflict-prone states 

can also be utilized as a combat function in support 

of the army, as is currently the situation with the Iraqi 

police who are being used to secure cities that have 

been retaken from the Islamic State.49 In post-conflict 

scenarios, the police face numerous challenges. The 

first is the requirement to transition from serving a 

combat function to performing a more traditional 

policing role. This requires a shift in capability, skills, 

and mindset. In addition, during the transition period, 

the police are likely to be required to perform both 

roles, as the security situation remains volatile. This is 

likely to cause problems in terms of resources as well 

as further confusion as to their identity and function.

The need to be multi-skilled and have the ability to 

multi-task is not unique to the police in post-conflict 

states. This is also a requirement and a challenge for 

the U.S. Army operating in COIN campaigns, in that 

they are also required to fulfill multiple roles as the 

security situation dictates, alternating between combat 

and state-building activities. As such, the U.S. Army is 

well placed to empathize with the challenge the police 

forces face, and potentially act as role models as to how 

this could be accomplished. However, this can only be 

achieved if the U.S. Army is able to tailor relevant skill 

sets to police requirements.
26

This is not an unrealistic requirement. According to 

former British soldiers who have left the army to join 

the police, soldiering skills are transferable and can be 

highly relevant to traditional policing.50 However, for 

the U.S. Army to succeed in training police officers, 

it needs to be mindful at all times that the role of the 

Army is to train police officers, not soldiers. As such, 

they must be respectful of the fact that these are two 

different roles requiring different skill sets, and that 

one is not superior or inferior to the other.

In Afghanistan for example, the military has come 

under harsh criticism for its treatment of the Afghan 

National Police (ANP) as a lightly armed element of the 

Afghan National Security Forces rather than as a separate and distinct civilian institution of law enforcement 

professionals.51 As such, U.S. Army commanders need 

to ensure that their Soldiers respect the difference in 

skill sets required, and remind them of the importance 

of the role of non-military organizations in bringing 

sustainable stability to post-conflict states. The military may take the lead during conflict, but once in the 

post-conflict scenario, it is the civilian institutions that 

need to take the lead to maintain peace. In the case of 

Afghanistan, it is generally acknowledged by the international community that law and order should eventually be enforced by civilian police, as opposed to by 

the Afghan National Army. This further emphasizes 

the need to nurture the police as police in terms of skill 

sets and mindsets, as opposed to an organization that 

exists to support the military.

This is relevant as organizational culture and 

self-perception is often an issue with the police in 

post-conflict states. Police officers who have served in 

conflict zones for long periods of time consider themselves combatants, not police officers. Many serving 
27

officers may have only experienced conflict environments and are likely to have never witnessed traditional policing. In other words, they have no idea what 

policing should look like, and they have had no police 

role models to aspire to become. This will often result 

in confusion as to the role of the police, amongst not 

only serving police officers but also the general populations of that country. For example, in the words of 

one Afghan who commented that his father had served 

as a policeman, when asked what his father’s role was 

in the police, he answered that he had served as a tank 

driver.52

One consequence of the police’s self-perception as 

a military as opposed to a civilian entity is that unless 

this perception can be changed, it will struggle to 

transition into the traditional policing role necessary 

to deliver sustainable law and order in the medium 

to long term. Despite the need to succeed as a civilian organization, it is worth observing that almost all 

police development interventions by the international 

community, including the establishment of operational 

policy, force structure, and standardized training and 

professionalization, have been modeled on military as 

opposed to civilian police institutions.53 Furthermore, 

experience in theater has shown that training provided by military personnel to police personnel often 

exacerbates the preexisting military culture, where 

students aspire to become better soldiers, not police 

officers. This becomes problematic when the training 

function is passed on to police agencies where the students often have difficulty in identifying with traditional police culture and practices. Consequently, the 

U.S. Army should be mindful of this issue and bring in 

police advisers at the earliest possible opportunity to 
28

ensure that the transition between military and police 

roles can take place more smoothly.

If there is concern that a civilian police adviser may 

struggle to fit into a military environment, one solution 

is to deploy army reservists who serve as police officers in their main civilian profession. In addition, there 

are also ex-military advisers with policing knowledge 

who could equally serve as a bridge between military 

and civilian cultures. Therefore, when recruiting advisors, U.S. Army commanders could specify that the 

civilian adviser he or she intends to recruit should possess policing experience or knowledge, ideally with a 

military background, or has experience working with 

and within the military. Furthermore, these individuals should be brought in at the earliest opportunity to 

ensure that any training provided by the U.S. Army is 

context specific and fit for purpose.

If training is to be provided by military trainers 

without policing knowledge, they too must be trained 

so that the trainers fully understand the role they are 

playing in preparing their students for what will ultimately be a civilian policing function. They must also 

be able to convey to their students that its combat function is an interim means to an end, and to introduce 

the concept of traditional policing. It should also be 

communicated at the outset that policing is ultimately 

about safeguarding, which requires a number of specific skills. Safeguarding requires the ability to collect 

and develop intelligence, carry out successful investigations, and collect evidence and present it in such a 

way that will bring about a successful prosecution in 

court. All of these specific skills are necessary to sustain rule of law in the medium to long term. Furthermore, it is absolutely correct that the military should 

endorse and deliver this message to initiate the change 
29

in mindset that is so urgently required. What is important is that this forms part of the military training curriculum. There is also no reason why combat training 

cannot take place alongside or integrated with cultural 

education programs to encourage a gradual change in 

mindset of the police officers being trained by the U.S. 

Army. This will help prepare police officers for traditional police training to be conducted at a later stage by 

ensuring that expectations are managed when they are 

handed over to police trainers.

Another important aspect of traditional policing is 

the ability for the police to engage with the community. However, during periods of conflict, the police 

often become separated from the populations they are 

meant to serve and protect. Instead, they are likely to 

have become accustomed to operating more like an 

occupying army than public security officers. Again, 

similarities can be drawn between the U.S. Army in its 

requirement to perform hearts and minds operations 

where interaction with the local community is necessary. At the same time, extreme caution must be exercised, as there are fundamental differences that must 

be understood between hearts and minds influence 

operations in the context of COIN missions and community policing. Hearts and minds operations are in effect 

an exercise of soft military power aimed at removing 

the support of the local populations from insurgents.54

They typically involve so-called consent-winning and 

gratitude-seeking elements to attempt to gain the support of local populations so that the military’s own 

objectives can be achieved.55 In community policing,

the aim is to prevent or reduce crime by developing 

partnerships with the community to make neighborhoods safer. Community policing is generally described 

as a philosophy, as opposed to a tactic, designed to 
30

tackle issues surrounding crime proactively based on 

a problem solving approach achieved through building relationships with community members.56

The term “hearts and minds” is also used in the context of community policing, and both practices contain 

an element of intelligence gathering and require similar skill sets such as the ability to communicate with 

the local population. However, the objectives are fundamentally different, and time scales also differ in that 

military objectives tend to be more short term, whereas 

community policing requires a medium to long-term 

approach. This is relevant as attempting to reach longterm objectives in a short-term timescale commonly 

leads to failure. Consequently, training delivered to 

the police needs to reflect these differences which can 

again be achieved through the use of specialist advisers who are capable of translating military skills into 

police applications.

A further challenge facing the U.S. Army involved 

with training police in post-conflict states is that it is 

highly likely the police may have perpetrated serious human rights violations, which, in turn, may well 

have fueled conflicts. In other words, instead of being 

the solution to a problem, they are often the cause of 

the problem. Transforming such police forces into 

rights-respecting police services that simultaneously 

provide protection and fight crime is undoubtedly 

challenging.57 However, that does not mean that these 

problems cannot be overcome. The U.S. Army again 

has a potentially vital role to play in communicating 

what is acceptable behavior and what is not—as well 

as why it is not. In many ways, the military is an ideal 

environment to establish, enforce, and project codes of 

behavior due to the high level of discipline that is at 
31

the core of the military’s distinct way of life and values, 

which in turn generate a culture of respect for the law.

With each post-conflict environment having its own 

distinctive features, there is no one model of police 

reform and training that will yield the desired results. 

Even if a model worked well in one post-conflict country, it should not be directly applied to another without considerable thought, as each scenario presents 

its own unique circumstances and challenges specific 

to that country and time period.58 However, there 

are lessons from recent theaters as to what to avoid, 

as well as good practices that have worked which 

could be adapted and adopted in future campaigns. 

Recent research into reform of the ANP serves as a 

useful example. Despite considerable interventions 

by the international community, the ANP remains a 

highly corrupt and uncoordinated force, and has made 

only limited advances since 2001. Part of the problem 

lies in the fact that the ANP regards itself as a military organization, whose primary task is to fight the 

insurgency, a view exacerbated by law enforcement 

training provided by international military forces to 

include the U.S. Army. There is little shared sense that 

the police force’s primary duty is to protect the civilian population. Human rights and gender equality are 

not issues that are considered as relevant to the police 

at the grassroots level, and customs such as bacha bāzī, 

which are in serious violation of International Human 

Rights Law, continue to be practiced by police on a 

regular basis. Although gender awareness has started 

to be incorporated into capacity building programs, 

as well as strategy and policy development, genuine 

buy-in has not been accomplished to date. Attempts to 

introduce female police officers too quickly have been 
32

criticized, as they often resulted in the physical abuse 

of those officers by senior male police commanders.59

Several reasons for the lack of success have been 

identified. These include the tendency to adopt a “tickbox” mentality where the potential unintended consequences of certain actions or policies are not fully 

thought through. These were exacerbated by the need 

to deliver results quickly, as well as an over focus 

on quantity over quality. For example, success for 

police training was often measured on the basis of the 

number of police officers who attended basic training 

as opposed to what they learned. In many cases, there 

were no tests or measures in place to assess whether 

the necessary basic standards were reached. In addition, the content of the courses was often reported as 

being a simple transmission of the instructor’s own 

experiences, which not only varied from instructor 

to instructor but also had little relevance in the local 

context. As with any form of education or training, the 

moment students feel that what they are being taught 

is not relevant to their role, there will be no incentive 

for those students to learn. Consequently, attendance 

at training sessions is only motivated by being linked 

to receiving pay, as opposed to developing knowledge 

and skills necessary to carry out their role effectively.

In addition, uncoordinated interventions have 

resulted in students receiving conflicting advice and 

instruction, causing further confusion. Shortages in 

translators also added to the general chaos because 

students were unable to understand what the instructors were saying.60 The pressure for positive reporting 

is understandable given the considerable investment 

made to reform not only the police, but also rule of law 

interventions more generally. In the case of Afghanistan, there was considerable pressure on those involved 

in reforming the police to demonstrate success. These 
33

pressures have also resulted in a short-term approach 

in solving issues that required a medium to long-term 

solution. In short, expectations were unrealistic.

At the same time, there have been reports of successful training practices. These were, on the whole, 

delivered by trainers who had the relevant skill set and, 

more importantly, the ability to adapt their training to 

be relevant and context specific. In most cases, having 

the right aptitude and credibility in the eyes of the students was considered to be far more relevant than a 

deep knowledge of the subject matter. In all cases, success depended on the ability of the trainer to have a 

flexible mindset and adapt the course as required.

Other areas of ANP achievement unrelated to training included tackling corruption relating to the payment of police salaries. Payment of police salaries is 

key in ensuring that police officers do not leave to join 

the insurgency on the grounds of pay.61 In recognition 

of the importance of paying police officers’ salaries, the 

international community raised the necessary funds 

managed by the Law and Order Trust Fund Afghanistan, which manages international funds used to pay 

the salaries of more than 140,000 police officers.62 The 

concern was that payments made directly to the Ministry of Interior (MoI) or the ANP would not reach their 

intended recipients partly due to the lack of administrative infrastructures exacerbated by corruption 

which was epidemic not only within the Ministry, but 

also more generally. For example, officials responsible 

for police pay would provide names of fictional police 

officers to receive payment that would then be divided 

amongst corrupt officials.

In response to these concerns, governments (to 

include the United Kingdom) have taken the stance 

that aid must be delivered directly in the form of technical assistance, such as helping the MoI establish an 
34

accounts system, as well as providing training and 

supervision to staff in performing police vetting functions. These include the identification of police officers, 

and arranging physical payment to the police officers 

directly and bypassing their superiors, to ensure that 

the funds were not lost or misdirected. This in turn 

ensured that police officers do not leave the police and 

join the insurgency on the basis of economic necessity, 

and receive the necessary training to become a more 

professional police force. If citizens are able to see positive change and develop trust in their police force, 

trust in the state as a whole is also likely to improve.63

Significant and sustainable improvements in policing also depend on changing the capacity of the courts, 

and their ability to deliver justice.

THE JUDICIARY AND THE COURTS

The judiciary is the branch of government that is 

endowed with the authority to interpret and apply the 

law, adjudicate legal disputes, and otherwise administer justice.64 However, as with the police, the judicial branch of the justice system in countries emerging 

from conflict usually lacks capacity in terms of physical buildings to house the courts, administrative structures that enable courts to take on and handle cases, 

and qualified personnel such as judges, prosecutors, 

and defense lawyers, all of which are essential to the 

ability to deliver justice.65 In order to increase the necessary capacity of the judicial system, the U.S. Army 

has, alongside its international partners, contributed 

to numerous interventions to enhance the delivery of 

justice in a range of countries. Examples range from 

construction of court buildings and prisons that may 

have been damaged or destroyed during conflict, to 
35

the provision of security, which enables the courts to 

operate.

Construction is an area that is typically outsourced 

to third party contractors, and it has received much 

criticism in recent years in theaters including Iraq and 

Afghanistan. For example, according to inspections 

and investigations carried out by the Special Inspector General for Afghanistan Reconstruction (SIGAR), 

a significant amount of construction projects suffered 

deficiencies, illustrated numerous instances of contract 

non-compliance, or were abandoned half completed. 

Examples include the failure to complete the $10 million construction of the Justice Centre in Parwan and 

the $20.2 million renovation project of Pol-i-Charkhi 

prison.66 In the case of this prison, Afghanistan’s largest correctional facility that was originally built in 1973 

to house approximately 5,000 prisoners, $18.5 million was paid despite the fact that the contractor only 

completed approximately 50 percent of the required 

work. Furthermore, with both projects, the work that 

had been carried out was reported as mainly defective. This is an area where the U.S. Army, in particular 

the U.S. Army Corps of Engineers, has the potential 

to play a bigger supervisory and management role 

to ensure that construction projects are completed to 

specification, on time, on budget, and to the required 

standards.

This is worthy of attention especially as inadequate 

oversight is believed to fuel corruption in such projects. 

In a report entitled “Corruption in Conflict” published 

in September 2016, SIGAR highlighted the damaging 

impact of corruption, not only in terms of its impact 

on construction projects as part of broader rule of law 

interventions, but also to the U.S. COIN campaign 

as a whole. According to former U.S. Ambassador to 
36

Afghanistan Ryan Crocker, “The ultimate failure of 

our efforts . . . wasn’t an insurgency. It was the weight 

of endemic corruption.”67

The report identifies five main findings with 

respect to the impact of corruption on the U.S. Afghan 

campaign from which lessons and recommendations 

for improvement can be drawn for future interventions. First, corruption undermined the U.S. mission 

in Afghanistan by fueling grievances and channeling 

support to the insurgency. Second, the United States 

contributed to the growth of corruption. Third, the 

United States was slow to recognize the magnitude of 

the problem. Fourth, U.S. security and political goals 

consistently overrode strong anticorruption actions; 

and finally, anticorruption efforts lacked sustained 

political commitment and saw limited success.68 These 

criticisms apply equally to rule of law interventions.

In relation specifically to the justice system in 

Afghanistan, corruption is an epidemic within the 

judiciary, directly impacting their ability to deliver 

justice. A 2010 UN survey found that more than half 

the adults who had come into contact with prosecutors, judges, or the police had paid a bribe. According 

to Gulab Khan, a senior police investigator in Oruzgan 

Province, out of approximately 150 people detained 

for murder and other heinous crimes each year, half 

are released through means of corruption.69 The conviction of opium trafficker Haji Lal Jan Ishaqzai is a 

case in point. Ishaqzai, a U.S. Treasury-designated 

“kingpin,” was convicted by the Afghan CounterNarcotics Justice Center (CNJC), for offenses relating 

to drug trafficking and was sentenced to 15 years in 

2013.70 Not long after he was sent to prison, Ishaqzai is 

reported to have paid in the region of $14 million to a 

cross-section of people in the criminal justice system to 
37

secure his release.71 As disheartening as this case may 

be, it illustrates the ubiquitous nature of corruption in 

every aspect of Afghanistan society from which two 

primary lessons can be drawn which equally apply to 

numerous post-conflict states suffering from epidemic 

corruption. The first is the importance of tackling corruption which has been recognized as a key characteristic that undermines efforts made in rule of law and 

other interventions aimed at bringing stability. This is 

particularly true with respect to law enforcement and 

the judiciary. In Afghanistan, with the exception of the 

Narcotics Courts, justice is rarely served as payments 

of money can be, and frequently are, made to overturn convictions. Until this situation changes, corruption will continue to impact the effectiveness of rule 

of law and general stabilization interventions carried 

out by the United States and its partners. The second 

is to look at the successes achieved by the CNJC to see 

whether this model can be utilized elsewhere, not only 

in Afghanistan but also in other post-conflict states.

The CNJC was set up to bring to justice those 

involved with narcotics.72 It achieves its aim by colocating close by the Supreme Court, the Office of the 

Attorney General, the MoI, and the Ministry of Justice 

in one secure location and is mentored by police officers from the British National Crime Agency (NCA). 

Counternarcotics is one area where there is general 

consensus that the joint efforts of the United States 

and Great Britain have had a positive impact. To date, 

there have been 621 convictions, including 35 Afghan 

officials, indicating the CNJC’s ability and willingness 

to target not only the low hanging fruit but also more 

senior corrupt figures previously considered to be out 

of reach. Furthermore, the CNJC has not only pursued 

the arrest and prosecution of alleged drug dealers, but 
38

has also focused on ensuring that the rights of suspects 

are fully respected and that they are given a fair and 

open trial. Within Afghanistan, this is the only court 

considered “corruption free,” where clan affiliations 

have no influence and convictions cannot be overturned through the payment of money.

The success of the CNJC to date has been attributed 

to several factors. First is the adoption of vetted, 

merit-based appointments where judges and prosecutors are appointed based on merit and qualifications as 

opposed to political or clan affiliation. Second, top-up 

payments have ensured that salaries paid to judges and 

prosecutors are sufficient to ensure that they are less 

tempted by bribery money. Third, all activities of the 

courts are closely supervised by the NCA, providing 

little opportunity for wrongdoing. Finally, discipline 

during training and education played an important 

role in professionalizing staff at all levels. Unlike many 

courses offered through other international partners, 

courses offered through the NCA were mandatory 

and strict discipline was exercised by NCA staff at all 

times. In addition, the courses were not “attendance 

only,” and instead performance of the attendees was 

assessed.73 One further factor is the court’s ability to 

serve justice quickly, unlike other formal justice systems where speed of convictions as well as access to 

the court is an ongoing problem.

Inability to serve justice in a timely manner has 

been a key issue resulting in continued reliance on the 

informal justice system in many post-conflict countries. This is one of the reasons why in Afghanistan, the 

Taliban system of justice continues to be the preferred 

system for many, in addition to the fact that many 

Afghans believe it to be less corrupt compared to the 

state system. The punishments passed by the Taliban 
39

justice system, such as stoning an adulterer to death, 

may have conflicted with commitments to human 

rights under both the Constitution and international 

law; nevertheless, the ability to deliver justice quickly 

provided the Taliban with authority. As such, the U.S. 

Army needs to consider how the lack of an effective 

state justice system impacts the broader security picture. The ability for the government to provide an 

effective state system of justice as a viable alternative 

to existing informal systems of justice, whilst ensuring 

that it is accessible to people irrespective of where they 

live, will directly change the balance of power which 

will impact COIN campaigns as a whole.

In post-conflict states that have been plagued by 

decades of conflict, access to fair, efficient, and transparent justice is often limited. Formal courts are often 

difficult to access especially for people in the provinces. A further issue relates to inadequate numbers 

of qualified legal personnel. The capacity of the justice 

sector can only grow if there is adequate legal education provided to judges, prosecutors, and criminal 

defense attorneys to support a well-balanced criminal 

justice system.74 Although there have been initiatives 

to provide legal education, many have been unsuccessful. Due to the lack of adequate educational facilities 

in those countries, scholarships have been provided 

to promising candidates to send them to the United 

States and elsewhere to receive legal education and 

to obtain the necessary legal qualifications to enable 

them to practice law. However, many have ended up 

staying in those countries instead of returning to their 

country of origin to practice.75 This clearly defeats the 

object of the investment.
40

As a possible solution to this problem, one could 

look to how legal firms, accountancy firms, and investment banks retain post-qualification interns. Prior to 

qualification, the intern is required to sign a contract 

with the firm which includes a clause stating that the 

individual is committed to working for the firm for a 

set period of time post qualification. This ensures that 

the individual does not jump ship immediately upon 

qualification so that the investment made by the firm 

is not lost. Startlingly, no scheme of this sort appears to 

have been applied in post-conflict countries to ensure 

that the newly qualified judges and lawyers practice 

law in the country intended.

The alternative is to provide education in country, but this presents many challenges. The first is the 

lack of educational facilities. The second is security, in 

that it requires teachers and lecturers who are willing 

to travel to and able to survive in a hostile environment. In addition, students may be attacked on the 

way to college, especially if they are female. There 

are numerous cases of female students having been 

attacked with acid in countries like Iraq, Pakistan, and 

Afghanistan, where many elements of the population 

hold traditional views that women and girls should 

not receive education of any description nor pursue a 

career.76 As such, university and other training facilities need to be secure. All of this requires considerable 

funding. A further consideration is that, unlike delivering basic training to police forces, legal qualifications 

take considerably more time, and lecturers and tutors 

need to be able to stay for longer periods in order to 

nurture the students. A week or two of lectures provided by a Western law professor is insufficient.77 In 

the case of Afghanistan, most of the practicing lawyers 

who were educated during the Soviet occupation are 
41

now reaching retiring age. There is real concern that 

given a few years, there will be even fewer qualified 

judges, prosecutors, and attorneys due to the fact that 

no investment has been made to create a new generation of lawyers to replace those about to retire.

Legal educational programs are also necessary for 

the wider population. For example, in the Democratic 

Republic of Congo, the UN funded radio station, Radio 

Okapi, has been used to make the law accessible to the 

people. The radio station has developed theater pieces 

on aspects of the justice system that have proved to be 

very popular with listeners, as well as a series of programs linking international human rights law to customary law in order to demonstrate the universality of 

human rights standards. The station also sends theater 

troupes into the countryside to educate people on matters relating to justice.78

However, such programs are fairly unique and 

more needs to be done to inform the public at large 

and to engage them in the justice process. Rule of law 

experts are not media experts, therefore the latter need 

to be recruited to assist in developing a media strategy 

tailored to the national or local context.79 This could 

be achieved with the help of U.S. Army intelligence 

personnel with human terrain analysis expertise. 

It is unfortunate that the U.S. Army Human Terrain 

System program ended in 2014, as it was deemed to 

be no longer a requirement in theater.80 In contrast, 

within the British Army human terrain analysis continues to be recognized as a key aspect of intelligence 

and information activities.81 Consequently, the U.S. 

Army is likely to have to source specialist expertise in 

this field if it wishes to strengthen the role of the population and civil society as part of its public education 
42

and awareness campaigns through the delivery of rule 

of law public education programs.

As in the case of Radio Okapi in the Congo, such 

interventions are of vital importance if the existing 

justice system in a post-conflict state is to function. It 

is with the aid of multiple coordinated interventions 

that dysfunctional dual or multiple systems of justice 

may eventually become part of an effective unified 

justice system. However, for that to happen, the existence of informal systems of justice must be respected. 

In other words, the newly introduced formal justice 

system cannot simply replace the informal one, but 

instead systems must converge and merge. For centuries, in the case of Afghanistan, informal justice systems such as the jirga/maraca for the Pashtuns, and the 

shura for non-Pashtuns operated as a mechanism for 

dispute settlement. These dispute-resolution institutions incorporate prevalent local customary law, and 

institutionalize rituals such as nanawate, administered 

by a body of village elders with an established social 

status and reputation for piety and fairness. However, 

they frequently do not provide outcomes that meet 

international human rights standards, due partly to 

an emphasis on communal over individual rights. But 

since such systems are deeply embedded in Afghan 

culture, it would be a mistake to even attempt to eradicate them. Instead, interventions to attempt to increase 

awareness of human rights standards need to continue 

to try to achieve buy-in to such concepts from village 

elders and the populations more widely.

This will take time. The desired results can only 

be achieved through long-term sustained support and 

active inclusion of the population and civil society. It 

is with this in mind that careful consideration must 

be given by U.S. Army commanders at the earliest 
43

opportunity to wider issues surrounding the establishment of the rule of law as part of an eventual exit 

strategy.

CONCLUSION

The importance of establishing rule of law in 

post-conflict states has been recognized as key in delivering stability in fragile states in the short, medium, 

and long term. This is in the interest of the U.S. Army 

and its partners not only from a COIN perspective, but 

also to protect U.S. security interests both at home and 

abroad. To that aim, assistance is required to ensure 

that in post-conflict environments, the management 

and maintenance of security is successfully transferred 

to civilian organizations such as the police and the justice system more generally. It is only when this successful transition occurs and sustainable rule of law 

has been established that military commitments can 

cease. As such, it is essential that the end state to a successful civilian handover form part of a plan for disengagement after an intervention.

However, one key challenge for organizations (such 

as the police) emerging from conflict is the requisite to 

transition from a combat function to a more traditional 

policing function. This is difficult due not only to a lack 

of the necessary skill sets, but also because of the need 

for a fundamental change in mindset about the purpose of policing. The U.S. Army can play an important 

role in facilitating the establishment of effective rule 

of law institutions and practices in post-conflict states 

in many ways. Additionally, a lack of appreciation of 

the importance of civilian institutions and their role in 

establishing rule of law will lead to an exacerbation of 

the problem.
44

Delivering rule of law interventions is a complex task involving multiple stakeholders. Numerous challenges exist, each of which can prevent the 

establishment of effective and sustainable rule of law 

institutions. This in turn is likely to lead to a requirement for further military support from the U.S. Army 

resulting in even longer term deployments in what 

can become an unending conflict. In order to avoid 

unintended consequences which will have the impact 

of undermining rule of law interventions carried out 

by the U.S. Army and its partners more broadly, the 

following recommendations should be considered in 

shaping future U.S. Army interventions relating to 

establishing rule of law as part of its future COIN and 

state building missions.

RECOMMENDATIONS

Recommendation 1: Contextual Understanding

Develop a broad understanding of the rule of law 

landscape in the post-conflict state in question, and 

identify key challenges which may deter the establishment of effective and sustainable rule of law 

institutions.

Recommendation 2: Unintended Consequences

Consider the potential unintended consequences of 

U.S. Army interventions in training local police forces 

and other rule of law interventions, and determine 

how can these be mitigated or avoided.
45

Recommendation 3: Strategic Objectives

Reevaluate objectives to ensure that expectations 

are realistic in terms of what is to be achieved and 

the timescale in which to achieve them. Consider the 

impact of short-term mission objectives in attempting 

to achieve medium to long-term objectives.

Recommendation 4: Sustainability

Ensure that rule of law interventions are sustainable after withdrawal of troops and form part of U.S. 

Army exit strategies. Ensure that these are integrated 

into post-conflict planning before intervention is 

considered.

Recommendation 5: COIN versus State Building

Address the existing confusion between the combat 

element of COIN operations and state building missions, and understand how this conflict can undermine 

both operations.

Recommendation 6: Police Training

Determine the role that the U.S. Army should play 

in facilitating a transition from military to civilian rule 

of law, and exercise particular attention to challenges 

relating to corporate culture. 

Recommendation 7: Skills Shortages

Determine when and how rule of law mechanisms 

and advisors should be integrated into stability operations and consider how the U.S. Army could better 
46

utilize its Reserve Forces to provide capacity and specialist skills to facilitate civilian transition.

Recommendation 8: Corruption and Human Rights 

Abuses

Adopt a zero-tolerance policy toward corruption and human rights abuses and provide remedial 

education where such practices may have become 

institutionalized.

Recommendation 9: Management and Oversight

Provide management and oversight of third party 

contractors through deployment of the U.S. Army 

Corps of Engineers to ensure that construction projects 

relating to rule of law interventions are completed to 

the required specifications.

Recommendation 10: International Liaison

Highlight other partner institutions the U.S. Army 

could or should be engaging with to ensure a coordinated approach to the establishment of effective rule of 

law institutions and practices in the host country.

ENDNOTES

1. Headquarters, U.S. Department of the Army, Insurgencies 

and Countering Insurgencies, Field Manual 3-24, Washington, DC: 

U.S. Department of the Army, Change No. 1, June 2014, p. 1-20, 

paras. 1-83–1-84, hereafter, Field Manual 3-24.

2. Ibid.

3. Rachel Kleinfeld and Harry Bader, Extreme Violence and 

the Rule of Law: Lessons from Eastern Afghanistan, Washington, 

DC: Carnegie Endowment for International Peace, April 23, 

2014, p. 1, available from http://carnegieendowment.org/2014/04/23/
47

extreme-violence-and-rule-of-law-lessons-from-eastern-afghanistanpub-55391, accessed August 1, 2018.

4. Office of the United Nations (UN) High Commissioner for 

Human Rights, Rule-of-Law Tools For Post-Conflict States: Mapping the justice sector, Geneva, Switzerland: Office of the United 

Nations High Commissioner for Human Rights, available from 

http://www.ohchr.org/Documents/Publications/RuleoflawMappingen.

pdf, accessed November 22, 2016.

5. David J. Bame, “The Exit Strategy Myth and the End State 

Reality,” Thesis paper, United States Marine Corps Command 

and Staff College, Marine Corps University, Quantico, VA, 2001.

6. Stephen A. Clark, “Exit Strategy: The Nexus of Policy and 

Strategy,” paper prepared for the Weatherhead Center for International Affairs, Harvard University, Cambridge, MA, May 28, 

2006, p. 5, available from http://projects.iq.harvard.edu/files/fellows/

files/clark.pdf?m=1357530302, accessed February 18, 2017.

7. Ibid., p. 8.

8. “Operations Other Than War, Peace Operations,” Volume 

IV, No. 93-8, Fort Leavenworth, KS: Center for Army Lessons 

Learned, U.S. Army Combined Arms Command, December 1993.

9. Julinda Beqiraj and Lawrence McNamara, “The Rule of 

Law and Access to Justice in the Post-2015 Development Agenda: 

Moving forward but stepping back,” Bingham Centre Working 

Paper 2014/04, London, UK: Bingham Centre for the Rule of Law, 

British Institute for International and Comparative Law, August 

2014, pp. 4-5.

10. Lord Bingham has been referred to as “one of the United 

Kingdom’s most distinguished jurists in the last hundred years,” 

in The Right Honourable Dominic Grieve, Queen’s Counsel, 

Member of Parliament, “The rule of law and the prosecutor,” 

transcript of speech delivered at the 18th Annual Conference 

and General Meeting of the International Association of Prosecutors, Moscow, Russia, September 9, 2013, available from https://

www.gov.uk/government/speeches/the-rule-of-law-and-the-prosecutor, 

accessed November 22, 2016, hereafter, Grieve, “The rule of law 

and the prosecutor.”
48

11. Tom Bingham, The Rule of Law, London, England: Penguin 

Books, 2011. See also Ibid.

12. Bingham; See also Grieve, “The rule of law and the 

prosecutor.”

13. UN Security Council, Report of the Secretary-General, 

“The rule of law and transitional justice in conflict and post-conflict societies,” UN Document S/2004/616, August 23, 2004, p. 4, 

sec. III., para. 6.

14. UN Office on Drugs and Crime and the United States Institute of Peace, Criminal justice reform in post-conflict States: a Guide 

for Practitioners, New York: United Nations, September 2011, p. 2, 

hereafter, Criminal justice reform in post-conflict States.

15. These four universal principles are further developed in 

the following nine factors of the World Justice Project Rule of Law 

Index which measures how the rule of law is experienced by ordinary people in 99 countries around the globe.

16. The World Justice Project, “What is the Rule of Law?” n.d., 

available from http://worldjusticeproject.org/what-rule-law, accessed 

February 18, 2017. 

17. United States Holocaust Memorial Museum, “The 

Nuremberg Race Laws,” n.d., available from https://www.ushmm.

org/outreach/en/article.php?ModuleId=10007695, accessed March 2, 

2017.

18. Criminal justice reform in post-conflict States, p. 1.

19. Naina Patel, “Building the Rule of Law in Helmand- testing the Bingham Principles,” Bingham Centre Working Paper 

2014/05, London, UK: Bingham Centre for the Rule of Law, British Institute for International and Comparative Law, October 

2014, pp. 8-13.

20. The Arusha Peace and Reconciliation Agreement for Burundi

provided that “The transitional National Assembly shall as a priority review all legislation in force with a view to amending or 

repealing legislation incompatible with the objectives of the transitional arrangements and the provisions of the present Protocol.” 
49

See Arusha Peace and Reconciliation Agreement for Burundi, signed 

in Arusha, Tanzania, on August 28, 2000, art. 16.2; The Agreement 

on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, signed in Bonn, 

Germany, on December 5, 2001, sec. II-2, known as the “Bonn 

Agreement” it provided for a judicial commission “to rebuild 

the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal 

traditions.”

21. Sarah Dix, Karen Hussmann and Grant Walton, “Risks of 

corruption to state legitimacy and stability in fragile situations,” 

U4 Issue, May 2012, No. 3, p. vii.

22. Shima D. Keene, “Corruption, Legitimacy, and Stability: 

Implications for the U.S. Army,” Carlisle, PA: Strategic Studies 

Institute, U.S. Army War College, 2017.

23. Kleinfeld and Bader, p. 1.

24. Susan Rose-Ackerman, “Good Governance & the Fight 

against Corruption,” Thought Piece, from proceedings of colloquium “The Nexus: Corruption, Conflict & Peacebuilding,” held 

on April 12-13, 2007, at the Fletcher School, Tufts University, 

Boston, MA, archived copy available from https://web.archive.org/

web/20100613201102/http://fletcher.tufts.edu/corruptionconf/pdf/ackerman.pdf, accessed August 27, 2018.

25. Kleinfeld and Bader, p. 5.

26. Michael Lacewing, Authority and Legitimacy, London, UK: 

Routledge, 2008.

27. Steven Shavell, “Law versus Morality as Regulators of 

Conduct,” American Law and Economics Review, Vol. 4, No. 2, 2002, 

pp. 227–257, available from http://www.law.harvard.edu/faculty/

shavell/pdf/4_Amer_Law_Econ_Rev_227.pdf, accessed December 3, 

2016.

28. Field Manual 3-24, p. 13-14, para. 13-61.

29. On the first anniversary of the election of President 

Mohamed Morsi on June 30, 2013, thousands of Egyptians took 
50

to the streets in Tahrir Square in Cairo demanding the dictator’s 

resignation.

30. Human Rights Watch, “Egypt: Epidemic of Sexual Violence: At Least 91 Attacks in 4 Days; Government Neglect Means 

Impunity Rules,” Human Rights Watch, July 3, 2013, available 

from https://www.hrw.org/news/2013/07/03/egypt-epidemic-sexualviolence, accessed November 21, 2016.

31. Countries ranked in order in the “World Human Rights 

Risk Index 2014,” in the extreme risk category of human rights 

abuses, see “World: Human Rights Risk Index 2014,” Relief Web, 

December 4, 2013, available from http://reliefweb.int/map/world/

world-human-rights-risk-index-2014, accessed December 3, 2016.

32. Rhiannon Redpath, “Women Around the World Are 

Being Stoned to Death. Do You Know the Facts?” Mic, October 16, 

2013, available from https://mic.com/articles/68431/women-aroundthe-world-are-being-stoned-to-death-do-you-know-the-facts, accessed 

December 3, 2016.

33. Emma Batha and Ye Li, “Infographic: Stoning—where 

is it legal?” Thomson Reuters Foundation, September 29, 2013, 

available from http://news.trust.org//item/20130927160132-qt52c/, 

accessed December 3, 2016.

34. Emma Batha, “Special report: The punishment was death 

by stoning. The crime? Having a mobile phone—This barbaric 

form of execution is on the rise, and campaigners are calling on 

the UN to act,” The Independent, September 29, 2013, available from 

http://www.independent.co.uk/news/world/politics/special-reportthe-punishment-was-death-by-stoning-the-crime-having-a-mobilephone-8846585.html, accessed December 3, 2016.

35. Although there is no mention of zina (sex outside marriage) in the Koran, supporters of stoning as a specific punishment for adultery claim that it is legitimized by the Hadith—the 

acts and sayings of the Prophet Mohamed. See also Batha, “Special report: The punishment was death by stoning.”

36. Daniel Howden, “‘Don’t kill me,’ she screamed. Then 

they stoned her to death,” The Independent, November 9, 2008, 

available from http://www.independent.co.uk/news/world/africa/
51

dont-kill-me-she-screamed-then-they-stoned-her-to-death-1003462.

html, accessed December 3, 2016.

37. In July 2013, Arifa Bibi, a young mother of two from 

Pakistan was stoned to death by her relatives on the order of a 

tribal court in Pakistan for the offense of possession of a mobile 

phone. See Batha, “Special report: The punishment was death by 

stoning.”

38. Chris Mondloch, “An Afghan Tragedy: The Pashtun practice of having sex with young boys—Afghanistan’s subculture of 

paedophilia is one of the country’s untold shames,” The Independent, October 29, 2013, available from http://www.independent.co.uk/

voices/comment/an-afghan-tragedy-the-pashtun-practice-of-havingsex-with-young-boys-8911529.html, accessed December 3, 2016.

39. Rustam Qobil, “The sexually abused dancing boys of 

Afghanistan,” BBC Worldwide Service, September 8, 2010, available from https://www.bbc.co.uk/news/world-south-asia-11217772, 

accessed December 3, 2016.

40. “The dancing boys of Afghanistan,” The United Nations 

Regional Information Centre for Western Europe, March 19, 2014, 

available from https://www.unric.org/en/latest-un-buzz/29091-thedancing-boys-of-afghanistan, accessed December 3, 2016.

41. Noman Ansari, “The filthy culture of bacha bazi in 

Afghanistan,” Media Watchdog, blog of The Tribune, September 

21, 2015, available from http://blogs.tribune.com.pk/story/29547/thefilthy-culture-of-bacha-bazi-in-afghanistan/, accessed December 3, 

2016.

42. Joseph Goldstein, “U.S. Soldiers told to ignore Sexual 

Abuse of Boys by Afghan Allies,” The New York Times, September 20, 2015, available from https://www.nytimes.com/2015/09/21/

world/asia/us-soldiers-told-to-ignore-afghan-allies-abuse-of-boys.html, 

accessed December 3, 2016.

43. Dan Quinn, a former special forces captain who beat up an 

American-backed militia commander for keeping a boy chained 

to his bed as a sex slave after hearing the boy’s screams was subjected to disciplinary action and career ruin. See Ibid.
52

44. Field Manual 3-24, p. 1-21.

45. Jody Ray Bennett, “Contractors to the Congo,” Global 

Policy Forum, December 1, 2011, available from https://www.

globalpolicy.org/pmscs/51061-contractors-to-the-congo.html, accessed 

February 18, 2017.

46. Jon Boone, “Foreign contractors hired Afghan ‘dancing 

boys’, WikiLeaks cable reveals,” The Guardian, December 2, 2010, 

available from https://www.theguardian.com/world/2010/dec/02/

foreign-contractors-hired-dancing-boys, accessed November 22, 2016.

47. “criminal justice system,” in Oxford Living Dictionaries, U.S. Ed., n.d., available from https://en.oxforddictionaries.com/

definition/us/criminal_justice_system, accessed December 4, 2016.

48. Criminal justice reform in post-conflict States, p. 10.

49. Michael S. Schmidt, “Iraqi Leader Asks U.S. for Help to 

Train Police Forces, Officials Say,” The New York Times, January 

23, 2016, available from http://www.nytimes.com/2016/01/24/world/

middleeast/iraqi-leader-asks-us-for-help-to-train-police-forces-officialssay.html, accessed December 6, 2016.

50. Interviews with ex-military Thames Valley Police officers 

during Operation BULLFINCH.

51. Donald J. Planty and Robert M. Perito, “Police Transition in 

Afghanistan,” Special Report 322, Washington, DC: United States 

Institute of Peace, February 2013, p. 1, available from https://www.

usip.org/sites/default/files/SR322.pdf, accessed January 3, 2017. See 

also Robert Perito, Afghanistan’s Civil Order Police, Special Report 

307, Washington, DC: United States Institute of Peace, May 2012, 

available from www.usip.org/files/resources/SR307.pdf, accessed 

December 7, 2016.

52. Author’s personal interview with Afghan prosecutor.

53. Michelle Hughes, The Afghan National Police in 2015 and 

Beyond, Special Report 346, Washington, DC: United States Institute of Peace, May 2014, p. 2.

54. David Kilcullen, “Intelligence,” in Thomas Rid and 

Thomas Keaney, eds., Understanding Counterinsurgency: Doctrine, 
53

Operations, and Challenges, Oxford, UK: Routledge, 2010, pp. 

141-159.

55. Jamie A Williamson, “Using Humanitarian aid to ‘win 

hearts and minds’: a costly failure?” International Review of the Red 

Cross, Vol. 93, No. 884, December 2011, p. 1036.

56. Linda S. Miller, Kären M. Hess, and Christine H. Orthmann, Community Policing: Partnerships for Problem Solving, 7th 

Ed., New York: Delmar Publishing, 2014, pp. 4-5.

57. Criminal justice reform in post-conflict States, p. 69.

58. Ibid.

59. Research conducted by the author into police reform interventions in Afghanistan.

60. Interviews carried out with police training personnel in 

Afghanistan between March and May 2016.

61. It has been observed that members of the security forces, 

both military and police, have left to join the insurgency—not as 

a consequence of ideology, but through economic necessity to 

sustain themselves and their families when their salaries had not 

been paid.

62. Hughes, p. 6.

63. Kleinfeld and Bader, p. 1.

64. “Judiciary,” in The Free Legal Dictionary by Farlex, n.d., 

available from http://legal-dictionary.thefreedictionary.com/judiciary.

65. Criminal justice reform in post-conflict States, p. 83.

66. Regarding the Justice Center, see Special Inspector General for Afghanistan Reconstruction (SIGAR), “Justice Center in 

Parwan Courthouse: Poor Oversight Contributed to Failed Project,” SIGAR-14-7 Inspection Report, Arlington, VA: Office of 

the Special Inspector General for Afghanistan Reconstruction, 

October 2013. Under a December 2010 agreement between the 

State Department’s Bureau of International Narcotics and Law 

Enforcement Affairs and the Department of Defense’s Combined 
54

Joint Interagency Task Force-435, the State Department bureau 

agreed to provide up to $10 million to construct the Justice Center 

in Parwan complex in Parwan province. Regarding the prison, see 

SIGAR, “Pol-i-Charkhi Prison: After 5 Years and $18.5 Million, 

Renovation Project Remains Incomplete,” SIGAR 15-11 Inspection Report, Arlington, VA: Office of the Special Inspector General for Afghanistan Reconstruction, October 2014. 

67. Lee Ferran, “America’s ‘Ultimate Failure’ in Afghanistan: Corruption by the Billions,” ABC News, September 14, 

2016, available from http://abcnews.go.com/International/americasultimate-failure-afghanistan-corruption-billions/story?id=42083133, 

accessed December 8, 2016.

68. SIGAR, Corruption in Conflict: Lessons from the U.S. Experience in Afghanistan, Arlington, VA: Office of the Special Inspector 

General for Afghanistan Reconstruction, September 2016, available from https://www.sigar.mil/interactive-reports/corruption-inconflict/index.html, accessed December 2016.

69. Joseph Goldstein, “Bribery Frees a Drug Kingpin in 

Afghanistan, Where Cash Often Overrules Justice,” The New York 

Times, December 31, 2014, available from http://www.nytimes.

com/2015/01/01/world/asia/bribes-free-drug-kingpin-in-afghanistanwhere-cash-often-overrules-justice.html, accessed December 8, 2016.

70. Counter-Narcotics Justice Center (CNJC) is a specialist 

police agency and court for narcotics and alcohol related offenses 

created, funded, and managed by the United States and United 

Kingdom. See also Statement for the Record Erin M. Logan, Principal Director for Counternarcotics and Global Threats, Office of 

the Secretary of Defense, Before the House Committee on Foreign 

Affairs Middle East and North Africa Subcommittee, “Department of Defense Counternarcotics Efforts in Afghanistan,” February 5, 2014, available from http://docs.house.gov/meetings/FA/

FA13/20140205/101709/HHRG-113-FA13-Wstate-LoganE-20140205.

pdf, accessed December 9, 2016.

71. Goldstein, “Bribery Frees a Drug Kingpin.”

72. CNJC is involved with prosecutions related to offenses 

involving narcotics as well as alcohol, described as intoxicating 

drinks.
55

73. The present author’s own research on rule of law interventions involving the CNJC between April and September 2016 

involving interviews and workshops held with judges and prosecutors from the CNJC, Afghanistan as well as police officers 

involved in training and supervising the CNJC and justice advisers based in Afghanistan.

74. Criminal justice reform in post-conflict States, p. 37.

75. Interview with Professor Fletcher Baldwin, Levin College 

of Law, University of Florida. Professor Baldwin served as Adviser-Lecturer, Afghanistan Rule of Law Project financed by United 

States Agency for International Development in Kabul between 

February and March 2008.

76. Shaan Khan, “Pakistani Taliban target female students 

with acid attack,” CNN, November 3, 2012, available from http://

edition.cnn.com/2012/11/03/world/asia/pakistan-acid-attack/, accessed 

December 9, 2016.

77. Interviews with Professor Fletcher Baldwin.

78. Criminal justice reform in post-conflict States, p. 89.

79. Ibid.

80. Human Terrain System program, the U.S. Army’s most 

expensive social science program was in existence for 8 years, 

costing $725 million deployed in Iraq and Afghanistan to conduct 

a range of activities to include data collection, intelligence gathering, and psychological operations. See also Scott Jaschik, “Embedded Conflicts: U.S. Army quietly shuts down Human Terrain 

System, which placed anthropologists and other scholars with 

military units in Iraq and Afghanistan and set off huge debate over 

scholarly ethics,” Inside Higher ED, July 7, 2015, available from 

https://www.insidehighered.com/news/2015/07/07/army-shuts-downcontroversial-human-terrain-system-criticized-many-anthropologists, 

accessed December 9, 2016; and Roberto J. González, “The Rise 

and Fall of the Human Terrain System,” Counter Punch, June 

29, 2015, available from http://www.counterpunch.org/2015/06/29/

the-rise-and-fall-of-the-human-terrain-system/, accessed December 9, 

2016.
56

81. Ministry of Defence (MoD), “Culture and Human Terrain,” Joint Doctrine Note 4/13, Shrivenham, UK: Developments, 

Concepts and Doctrine Centre, September 2013.
U.S. ARMY WAR COLLEGE

Major General John S. Kem

Commandant

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STRATEGIC STUDIES INSTITUTE

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U.S. ARMY WAR COLLEGE PRESS

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Professor Douglas C. Lovelace, Jr.

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Author

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Mrs. Jennifer E. Nevil