Post-Conflict Rule of Law Building: The Need for a Multi-Layered, Synergistic Approach

INTRODUCTION In recent years, considerable blood, sweat, and treasure have been devoted to building the rule of law in the wake of armed conflicts and military interventions in many parts of the world. From Afghanistan to Iraq, Kosovo to East Timor, and Sierra Leone to Haiti and elsewhere, international interveners and local leaders have struggled to address both security and humanitarian challenges in societies seeking to overcome a legacy of violent conflict. Increasingly, international and domestic reformers have come to appreciate that long-term solutions to security and humanitarian problems depend crucially on building and strengthening the rule of law: fostering effective, inclusive, and transparent indigenous governance structures; creating fair and independent judicial systems and responsible security forces; reforming and updating legal codes; and creating a widely shared public commitment to human rights and to using the new or reformed civic structures rather than relying on violence or self-help to resolve problems. (1) Building the rule of law is no simple matter, although triumphal interventionist rhetoric occasionally implies that it is. The idea of the rule of law is often used as a handy shorthand way to describe the extremely complex bundle of cultural commitments and institutional structures that support peace, human rights, democracy, and prosperity. On the institutional level, the rule of law involves courts, legislatures, statutes, executive agencies, elections, a strong educational system, a free press, and independent nongovernmental organizations (NGOs) such as bar associations, civic associations, political parties, and the like. On the cultural level, the rule of law requires human beings who are willing to give their labor and their loyalty to these institutions, eschewing self-help solutions and violence in favor of democratic and civil participation. (2) Especially in societies in which state institutions and the law itself have been deeply discredited by repressive or ineffectual governments, persuading people to buy into rule of law ideals is difficult. (3) Building public trust in newly developing legal institutions can take years, and mutually reinforcing reforms may be needed in multiple areas--from constitutional and justice system reform to initiatives designed to strengthen access to justice and increase public confidence in the very idea of the rule of law. Both institutionally and culturally, building the rule of law also requires extensive human and financial resources, careful policy coordination between numerous international actors and national players, and at the same time an ability to respond quickly, creatively, and sensitively to unpredictable developments on the ground. (4) For the last few years, my colleagues David Wippman, Rosa Brooks, and I conducted research in many societies--including Sierra Leone, Iraq, Kosovo, Bosnia, East Timor, and elsewhere--with the aim of understanding the many challenges of strengthening the rule of law in the aftermath of conflict. We interviewed national officials and civil society leaders, UN officials and staff, rule of law experts from different governments, and practitioners from many different NGOs and organizations, and we looked carefully at the unique circumstances and challenges in particular diverse, post-conflict societies. Our resulting book, Can Might Make Rights? Building the Rule of Law After Military Interventions, is designed to pull together in one volume the disparate bits of knowledge gained in the past decade with the goal of understanding why past international efforts to strengthen the rule of law after conflict have so often fallen short, and to offer concrete suggestions for what might be done better in the future. (5) We deliberately aimed to write a practical book that would assist policymakers and field workers, offer enough theoretical, legal, and historical background to enable readers to contextualize and understand the basic dilemmas inherent in interventions designed to build the rule of law, and help to evaluate unique as well as recurring challenges in different post-conflict societies. …