Abstract
This chapter will concern the rule of law as it relates to third-party interventions into violent conflicts: peacekeeping missions, humanitarian interventions, peacebuilding, and the like. This context will help fix the boundaries of the very general idea of rule of law, and suggest how we should conceptualize it for these contexts. This chapter will attempt to examine the role of law in a post-conflict society, and begin to develop a concept of rule of law appropriate to that context.
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Notes
- 1.
For example, the US Institute of Peace (a government-supported NGO) Rule of Law program has a project on “The Role of Non-State Justice Systems in Fostering the Rule of Law in Post-Conflict Societies,” http://www.usip.org/programs/initiatives/role-non-state-justice-systems-fostering-rule-law-post-conflict-societies (accessed August 19, 2009).
- 2.
Neil Kritz, “The Rule of Law in Conflict Management,” in Leashing the Dogs of War: Conflict management in a Divided World, ed. Chester A. Crocker, Fen Olser Hampson, and Pamela Aall (Washington, DC: USIP, 2007), 402.
- 3.
Andrei Marmor, “The Rule of Law and its Limits”, Law and Philosophy 23 (2004),:5–7. Also see Marmor’s later clarifications of several constraints.
- 4.
Kritz, “The Rule of Law in Conflict Management,” 404.
- 5.
USAID Bureau for Global Programs, Field Support, and Research Center for Democracy and Governance, Handbook for Democracy and Governance Program Indicators (Washington, DC: USAID, 1998). Indicator charts for rule of law span p. 25–54.
- 6.
Ibid, 36.
- 7.
Olu Arowobusoye, “Why They Fight: An Alternative View on the Political Economy of Civil War and Conflict Transformation,” (Berlin: Berghof Research Center for Constructive Conflict Management, 2005), 4.
- 8.
As Marmor points out, following Raz. Marmor, “The Rule of Law and its Limits,” 2.
- 9.
Ibid, 10.
- 10.
Philip Pettit, Republicanism: A Theory of Freedom and Government (New York: Oxford UP, 1997), 176–177. Pettit uses slightly different terminology; he speaks of the “empire of law” condition, rather than “rule of law.”
- 11.
E.g., “… the most valuable effect of the rule of law is that it enables individual autonomy. Rule of law makes it possible for people to predict the consequences of their actions and, hence, to plan their lives.” José María Maravall and Adam Przeworski, Introduction to Democracy and the Rule of Law, ed. José María Maravall and Adam Przeworski, 2.
- 12.
James Madison, Alexander Hamilton, and John Jay, The Federalist Papers, ed. Isaac Kramnick (New York: Penguin, 1987), p. 123 (paper no. 10). Madison seemed primarily concerned with the dangers of a majority faction, and seemed to think that democracy was a sufficient bulwark against the machinations of a minority. In post-conflict cases, of course, this is not true—an armed minority can easily pose a problem for an unarmed majority. In general, as I will argue below, organization should be seen as a key attribute of factions. Madison is probably too complacent about the possibility that a well-organized minority could pursue its interests at the expense of a disorganized majority.
- 13.
Montesquieu, The Spirit of the Laws, Anne M. Cohler, Basia C. Miller, and Harold S. Stone, eds. (Cambridge: Cambridge UP, 1989), 156–166 (§XI.6).
- 14.
Madison et al., The Federalist Papers, Chs. 9, 46–47.
- 15.
Kritz, “The Rule of Law in Conflict Management,” 402.
- 16.
Montesquieu, The Spirit of the Laws, 160.
- 17.
For a careful but cautionary analysis of one example, see Nelson Kasfir, “‘No-Party Democracy’ in Uganda,” in Democratization in Africa, ed. Larry Diamond and Marc F. Plattner (Baltimore, MD: Johns Hopkins UP, 1999).
- 18.
The rhetoric of conflict interventions is often questionable on this count. The US and its NATO allies repeatedly declared that the Kosovo intervention was undertaken on behalf of “the people” of the Federal Republic of Yugoslavia (now Serbia) and that their quarrel was only with the government in Belgrade. The US intervention in Iraq in 2003 was framed as a way to free “the people” of Iraq from dictatorship (alongside other justifications, of course). As rhetoric, this may be fine and even express worthwhile ideas, but there is a danger of taking the rhetoric too seriously and assuming that there is a “the people” who can assume governance duties in a fair and equitable manner once an external tyranny is removed. Tyrannies are, for better or worse, some of the people, organized.
- 19.
For example, see the General Peace Agreement for Mozambique, Protocol IV, I.i.4 (http://www.usip.org/library/pa/mozambique/mozambique_10041992_p4.html, accessed 18 July 2008); Chapultepec Peace Agreement (El Salvador), Ch. 2.7.D (integrated national police, http://www.usip.org/library/pa/el_salvador/pa_es_01161992_ch2.html#1, accessed 18 July 2008); Agreement on Permanent Ceasefire and Security Arrangements Implementation Modalities Between the Government of Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army During the pre-Interim and Interim Periods (aka the “Comprehensive Peace Agreement), §20 (on Joint Integrated Units, to form the basis of an integrated military if the agreement’s referendum process does not result in secession; http://www.usip.org/library/pa/sudan/cpa01092005/ceasefire_agreement.pdf, accessed 18 July 2008). Incidentally, it is not clear that, on their own, these integration provisions have a significant impact on the duration of peace—see Katherine Glassmyer and Nicholas Sambanis, “Rebel Military Integration and Civil War Termination,” Journal of Peace Research 45 (3) (2008). Glassmyer and Sambanis theorize that the failure of military integration to have a statistical impact on war termination may have to do with poor implementation, and a combination of integration with power-sharing regimes may be slightly better (the evidence is still inconclusive). One lesson we should draw from these results is that the use of rule of law, or other political structures, as a way to redistribute power and thereby transform conflict should not be identified with simply creating a structure that explicitly shares power between existing factions. The important element is rather to create a structure that allows non-violent conflict, and then find ways to encourage factions into it, through co-option, building the relevant capacities to use it, etc. This issue will be explored more in the final section of the chapter.
- 20.
See, e.g., Sally Chin and Jonathan Morgenstein, No Power to Protect: The African Union Mission in Sudan (Washington, DC: Refugees International, November 2005), 11–15.
- 21.
Sholnn Freeman and Sudarsan Raghavan, “Intense Fighting Erupts in Iraq,” Washington Post March 26, 2008, A section.
- 22.
Ned Parker, “In Iraq, US Caught in Middle of Shiite Rivalry,” LA Times, 30 March 2008, A Section.
- 23.
Juan Cole, “Clashes Continue in Basra: Badr Militia Strengthened,” Informed Comment, http://www.juancole.com/2008/04/clashes-continue-in-basra-badr-militia.html, posted April 4, 2008 (accessed August 19, 2009); Fred Kaplan, “Bush Bungles in Basra and Bucharest,” Slate, http://www.slate.com/id/2188161/, April 3 2008 (accessed August 19, 2009); Stephen Farrell and James Glanz, “More than 1,000 in Iraq’s Forces Quit Basra Fight,” New York Times, April 4, 2008 (accessed August 19, 2009) (the NYT identifies the supplemental forces just as “recruits from local Shiite tribes,” rather than as Badr Brigades).
- 24.
International Crisis Group, Where is Iraq Heading? Lessons from Basra, Middle East Report 67 (Washington, DC: International Crisis Group, 25 June 2007), 11–18.
- 25.
Pierre Englebert and Dennis M. Tull, “Postconflict Reconstruction in Africa: Flawed Ideas About Failed States,” International Security 32(4) (Spring 2008),116–117.
- 26.
William Reno, “Sierra Leone: Warfare in a Post-State Society,” in State Failure and State Weakness in a Time of Terror, ed. Robert I. Rotberg (Washington, DC: Brookings Institution Press, 2003), 71.
- 27.
Moisés Naím, Illicit: How Smugglers, Traffickers, and Copycats are Hijacking the Global Economy (New York: Doubleday, 2005), 58.
- 28.
Stephen John Stedman, “Spoiler Problems in Peace Processes,” International Security 22(2) (Autumn 1997), 10–11.
- 29.
Reno, “Sierra Lene,” 86.
- 30.
Andrea E. Ostheimer, “Transforming Peace into Democracy: Democratic Structures in Mozambique,” African Security Review 8(6) (1999), http://www.iss.co.za/pubs/ASR/8NO6/Transforming%20peace.html (accessed August 19, 2009).
- 31.
Dennis C. Jett, Why Peacekeeping Fails (New York: St. Martin’s Press, 1999), 77.
- 32.
One might ask, “is there some level of atrocity so vile that we should not invite involved groups to the table, no matter what the consequences might be?” For example, one might think that the Hutu genocidaires who fled to Zaire (now the Democratic Republic of Congo) ahead of the Rwandan Patriotic Front, after the 1994 genocide, in some sense represented a significant sector of society, who were potentially in danger of oppression at the hands of the new Tutsi-dominant RPF government—but also that it would be morally obtuse to include them in the post-conflict government. For current purposes, I will bracket this concern. First, though I will not argue it fully here, it may be more possible than it first appears to reintegrate especially the rank-and-file and mid-level leadership of groups involved in atrocities—as Arendt persuasively argued, the kinds of atrocity that the modern age has seen do not necessarily involve radical individual evil (she was considering genocide, but I suspect a similar psychology applies to atrocities like mass rapes and impressment of child soldiers). Second, I believe the best way of considering this issue is as prior to concerns about the rule of law. Rule of law, I have argued, should concern itself with how to create systems and distribute power so as to transform violent conflict into legal conflict. There is no guarantee that legal conflict will create morally superior outcomes. It may be, in some situations, that allowing a violent conflict to continue would lead to the destruction of the morally-worst factions, and so allow the creation of a more objectively just post-conflict order (see, e.g., Edward N. Luttwak, “Give War a Chance,” Foreign Affairs 78(4), July/August 1999). These kinds of concerns should be seen as weighing in favor of not pursuing the rule of law in some situations, rather than as arguments about how to pursue rule of law.
- 33.
Jarat Chopra, Toralv Nordbo, and Age Eknes, “Fighting for Hope in Somalia,” Journal of Humanitarian Assistance (19 February 1995), http://jha.ac/1995/02/19/fighting-for-hope-in-somalia/; See also Stig J. Hansen, “Warlords and Peace Strategies: The Case of Somalia,” Journal of Conflict Studies (Fall 2003), 57–59.
- 34.
Elmi, Afyare Abdi and Abdullahi Barise, “The Somali Conflict: Root Causes, Obstacles, and Peace-building Strategies,” African Security Review 15(1) (2006): 33–34.
- 35.
Armed groups that truly have little support from a population tend to be propped up by outside forces, such as RENAMO in Mozambique (backed by Rhodesia and then South Africa), UNITA in Angola (backed by the United States), or the LRA in Uganda (with significant support from elements of the Ugandan diaspora). Note also that “support” should not be confused with “positive attitude toward.” Populations may hate and/or fear an armed elite, but hate or fear other armed groups more.
- 36.
See Bard O’Neill, Insurgency and Terrorism: From Revolution to Apocalypse (Washington, DC: Potomac Books, 2nd Ed. 2005), 46–63; for a more concise but very similar treatment, see US Department of the Army, Counterinsurgency, FM 3-24/MCWP 3-33.5 (Washington, DC: Department of the Army, 2006), §1–25, 1–30.
- 37.
The case may not be so simple for governments, either—anarchists have long argued that governments are a source of violence, not a solution to it. If governments cause violence, however, it is in a much less direct way than the participants in a civil conflict do so.
- 38.
Madison et al., The Federalist Papers, p. 126 (no. 10).
- 39.
Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper & Row, 1942), 245.
- 40.
Schumpeter, Capitalism, Socialism, and Democracy, 280–281.
- 41.
An extended discussion of the Porto Alegre budgeting process can be found in Gianpaolo Baiocchi, “Participation, Activism, and Politics: The Porto Alegre Experiment,” in Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, ed. Archon Fung and Erik Olin Wright (New York: Verso, 2003).
- 42.
See, e.g., Stephen Golub, “The Legal Empowerment Alternative,” in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington, DC: Carnegie Endowment for International Peace, 2006).
- 43.
Schumpeter, in a nutshell, seems to think that the presence of democracy, characterized as elite competition for a constituency, will sufficiently moderate the behavior of elites. I am skeptical of this claim—getting one’s message out to a constituency requires mass communication (whether television/radio/internet or lower-tech means such as door-knocking volunteers or direct mailings), a function best pursued through organization. Creating new organizations is difficult, and generally speaking policy entrepreneurs who try to work through existing organizations have modest impacts on the overall organizational direction. Competition between existing elites tends to leave in place most of the status quo. Radical changes, such as the rise of the power of the Christian right in the US Republican Party represent long-term organizational efforts. Even in a democracy, challenging the power of existing elites requires organizational skills, not just formal competition among elites.
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Levine, D.H. (2010). Rule of Law, Power Distribution, and the Problem of Faction in Conflict Interventions. In: Sellers, M., Tomaszewski, T. (eds) The Rule of Law in Comparative Perspective. Ius Gentium: Comparative Perspectives on Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3749-7_9
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