Rule of Law

"The conference is engaged in establishing a world order in which the mice could be stamped out, but the lions would not be restrained."
-- Mexican delegate, UN Organizing Conference, 1945

By David Last

Fears for world order were aroused by eight years of unilateral policies from Washington, but with America's turn against the worldview of the neo-conservative Republicans, President Obama's administration and its allies around the world may be ready for a new "big idea" to address violence and underdevelopment.

One idea that has the potential to rally a broad spectrum of political support is the "Rule of Law." Here I try to put the idea into perspective and suggest four steps toward implementing rule of law as a strategy. These steps are: (a) determining whose laws; (b) putting imperial counter-insurgency ideas behind us; (c) bringing markets under control; and (d) achieving some self-interested self-restraint on the part of "the lions."

Rule of law is one of many straws that Western intellectuals and policy-makers have grasped since the end of the Cold War. The Washington consensus and neo-liberal market reforms were supposed to have hastened prosperity and equitable development, but unregulated global markets, with giant corporations largely escaping state oversight, have so far not produced sustained economic wealth for the global poor. Instead, they brought a financial bonfire that threatened deflation and depression around the world.

Global markets have lifted millions out of poverty (mainly in Asia) but have left millions of others (mainly in Africa) with no way out. The millennium development goals were to have coordinated a global assault on poverty, ignorance, and disease that left room - and incentives - for flows of private investment to poor countries. But those capital flows are now seriously compromised by financial market failures. Moreover, public resources are still over-committed to wars and under-committed to development.

Responsibility to Protect (R2P) as a principle is now accepted as international law. It was conceived to reconcile intervention by the international community and the sovereign responsibilities of states, but was viewed with suspicion when invoked to justify coalition operations in Iraq. The unfortunate Global War on Terror seems to have fanned more flames than it has quelled, and left the widespread impression that its primary aim was to promote the security of rich countries, not of the poor. Global inequality in the distribution of private incomes is matched by unequal access to human security -- such public benefits as criminal justice, public safety, and national defence. Markets encroaching on the public sphere are making the job of government tougher and tax bases smaller.

As we grapple with the current economic crisis, we are confronted not only with dramatic market failures but also with an incoherent set of policies that have, at best, a mixed record of success. In this context, the rule of law provides an alternative: at best a consistent set of ideals for a multilateral world order, with an even-handed approach to managing violent conflict and regulating global markets. Its overarching principles reach back to the enlightenment and may bridge the chasm between us and the less fortunate "rest of the world." It's a big idea that competing ideologies around the world can accept.

WHOSE LAWS?

Rule of law has historical roots in the liberal democratic ideologies of Europe. But in the 20th century, under the umbrella of the UN system, it has taken on a more inclusive meaning exemplified by the UN Charter and human rights instruments. In this modern form, Rule of Law does not provide a coherent explanatory narrative such as liberalism, communism, or fundamental religious worldviews. However, it does offer alternative prescriptions for such diverse systems as communism, Islam, and free-market capitalism. They all require rules, and while we disagree on their assumptions, we can argue rationally about the application of their rules and the procedures for establishing them democratically.

There are competing views of law - traditional, tribal, religious, and ideologically framed laws. Within "liberal democracy" there is a tension between primacy of individual rights and equality before the law versus democratic primacy of majorities in framing laws. Consent of the governed is fundamental to sustaining the rule of law, though Europeans lost sight of this as their own laws expanded with their empires.

We should expect rules to change as the governed assert themselves over time. Our own enlightenment about women's rights and sexual orientation is very recent. If we expect western secular humanist law to be the basis for international rule of law, we must be prepared to adapt or accommodate local variations. We will need a system to adjudicate between rule sets, but that system is yet another body of rules that must be collectively adopted.

Stated in this broad fashion, the rule of law as an ideal can be applied to reform our approaches to a variety of burning issues, notably the management of wars and counter-insurgencies in Iraq and Afghanistan; creating new ground rules for peace operations; and managing the economic development of poor countries with a maximum of "local control."

FAREWELL TO IMPERIAL ARMS

Counter-insurgency works when the insurgents are outnumbered and declared wrong by their neighbors. But the counterinsurgency doctrine of the West prepares strangers to fight in alien lands, though the military understands that this does not reduce violence or stabilize societies. A senior British officer commented recently on Israel's Gaza operation saying, "We lost 50 or 100 civilians every year to attacks from the South and didn't invade Eire; that's why we got to a settlement."

In contrast, an Israeli general recently announced that Israeli policy was to respond "disproportionately" to Palestinian attacks.

When we fight insurgencies at home (like the FLQ, or the Basque separatists, or the IRA) we don't use artillery or air strikes, but "over there" we do. We don't use targeted killings and clandestine operations at home, but "over there" we do. The difference is rule of law, and it can guide a re-examination of the application of force. We grant the full protection of the criminal justice system to most citizens of rich countries -- those not labelled as terrorists or enemy combatants. On what grounds do citizens of poor countries get less protection? The "laws of war" include provisions for "collateral damage." Is this discrepancy part of the injustice motivating insurgents? American pilots were court-martialled for bombing Canadian soldiers at Tarnak Farm; no one has been court-martialled for most Afghan and Iraqi civilian deaths.

Generations of military officers have written about how to win counter-insurgencies, often acknowledging the primacy of political, economic and social factors, but seldom displaying much sophistication about those factors, because after all they are soldiers, not sociologists or economists. The absurdly over-cited cases of Britain's vaunted success in Malaya in the 1960s and America's failure in Vietnam still influence military practice,[2] but relevant work by the US Institute of Peace and the World Bank do not. The World Bank has provided a framework for assessing and strengthening civil society as a basis for economic development, and the US Institute of Peace has an impressive program expanding expertise to promote rule of law, of which the US Army is finally beginning to take advantage.

Some doubt that American armed services can or should contribute to the rule of law and stabilization. There are many oft-cited reasons: "Superpowers don't do windows." Or, we need Leviathan in reserve. Or, the Americans are best at jobs demanding a lot of firepower.[3]

In peace operations, for example, we should keep the big powers out of the way and rely on consortiums of smaller powers operating under rule of law. But as some might remember from the old peacekeeping debates of the 1990s, there are specialists from bigger armies with a lot to contribute, and these specialists have been learning on the job since the post-Cold War peacekeeping explosion began. Chaplains are exploring a "ministry of external reconciliation."[4] Military police have been honing their police-building skills.[5] Military lawyers are involved in the rule of law project, and local military lawyers in countries like the Democratic Republic of Congo may be their best allies.[6] These small specialist branches can be entrepreneurial in ways that are impossible for overstretched forces with hunting-and-killing missions, and can make a disproportionate contribution.

Rule of law as a principle suggests a unifying theme for combining many tactical innovations that have been emerging since peacekeeping expanded after the Cold War. This unifying theme is mutual respect, and the golden rule of do-as-you-would-be-done-by, lest you later be-done-by-as-you-did. At a strategic level it can be found in the rules for Responsibility to Protect. It implies consent of the international community, and at the tactical level it insists, at a minimum, on the application of the rules of law in war.

BRINGING MARKETS TO HEEL

Both greed and grievance are causes of violent conflict, although their relative importance is disputed.[7] Whichever dominates, blood diamonds, illegally harvested timber, and coltan from the Congo are part of the dynamic of conflict. Oil in the Niger Delta and water in Colombia and South Africa already contribute to cycles of violence and disorder. Rule of law can help to bring markets to heel in the service of the public good. As with military law, why is the "public good" more consistently upheld in the privileged West?

The Rule of Law is not simply the imposition of "free trade rules," the alleged "sanctity" of commercial contracts and protection for (foreign) shareholders. It also pushes leaders to embrace "the consent of the governed" - including local communities, the poor, and disenfranchised ethnic groups - as a foundation of sustained economic development and healthy markets.

The UN Global Compact and new standards of Corporate Social Responsibility give the lie to Bond-movie style corporate villains, and show how rule of law can contribute to stabilization. The hope of the 1990s that the private sector would be a partner in peacebuilding has not yet materialized. We know in theory what a private sector peace implementation council might look like,[8] but the experimentation in Iraq has been halting and weakly supported.

Rule of law, supported by powerful states, can tame rapacious economic actors, but there are limits to corporate altruism,[9] so the public sector may have to be bigger than the private.

The rule of law shows that trust is essential for economic and social exchange. (This is recognized in the World Bank's useful ideas about social capital.)10 Functioning economies can serve as a bridge between estranged groups, as the black market does even at the peak of a conflict.

Under rule of law, we recognize that markets operate with their own logic, but we insist that trade and investment should not always favor the strongest party. When Canada and the US sign a trade agreement, disputes are adjudicated fairly and rulings are respected. (We hope.) This brings us to the difficult question of mice restraining lions.

LIONS TOEING THE LINE?

The unilateral and frankly alarming Bush years spawned a host of books warning about the hubris of empire, like Jim Garrison's America as Empire, Charles Kupchan's End of the American Era, and the anonymous Imperial Hubris.

Voltaire famously wrote that even the most powerful could not be everywhere the master without converting obedience to duty and ownership to right. And this, more than anything else, explains rule of law: it works for those who would otherwise be motivated to overthrow it. States that behave badly "because they can" eventually find that they can't. Bullying generates resentment; bombing civilians creates insurgents. Coercive power exerted is power diminished, as its victims find ways to resist. But rule of law holds the promise of power that can be preserved and passed on to the next generation of global enforcers, perhaps as Britain passed the torch to America. So even the lions have an interest in preserving the rules.

CONCLUSION

If we accept rule of law as a principle we reject unconstrained realpolitik (but accept state interests), we reject American exceptionalism (but acknowledge American power), we reject preemptive war (but accept just war), and we reject torture (and accept accountability). We reinvigorate the tradition of international law and multilateral institution building, which began with the League of Nations and which continues today with the United Nations. We recommit to the Universal Declaration of Human Rights, to the Genocide Convention, the Geneva Convention and its Protocols, to the International Criminal Court, and all the instruments limiting and constraining the barbarity of war, even while we remember that the 1928 Kellogg-Briand Pact outlawing war didn't hold up very well, and our Genocide Convention escutcheon is blotted by failures.

Rule of law articulates the fundamental principle that we can negotiate rules by which even the most powerful will be bound - if not always, then at least generally. And all parties - rich and poor, strong and weak - voluntarily commit not to breach them with impunity. The superpowers and the rich also implicitly accept that they will devote more to the enforcement of the shared rulebook than poorer, weaker countries. That, at least, is the ideal, no less now than in 1945.

David Last is a professor at the Royal Military College, Kingston, ON.

Notes

1 With thanks to Lew Diggs for his collaboration and assistance, and to Metta Spencer, as always.

2 It seems impossible to find work on counter-insurgency that does not cite these cases, including Hammes, Col. Thomas X. 2006. The Sling and the Stone: On War in the 21st Century. St. Paul, MN: Zenith; Nagl, John A. 2002, 2005. Learning to Eat Soup with a Knife: Counterinsurgency Lessons from Malaya and Vietnam. Chicago: University of Chicago Press. It is far less common to find work on the social and economic dimensions (driving the violence) than on the military symptoms.

3 John Hillen, Blue Helmets: the strategy of UN Peace Operations, (London: Brassey's 1998); Thomas P. Barnett, The Pentagon's New Map: War and Peace in the Twenty-First Century (New York: Putnam, 2004).

4 The Canadian Forces Chaplain General established an office in 2008 to explore the role.

5 Canadian Forces Joint Doctrine Manual, Peace Support Operations (Ottawa: PWGSC, 2003)

6 Canadian military lawyer Col. Dominic MacAlea worked with Congolese authorities planning to re-establish rule of law.

7 The World Bank's "greed and grievance" studies have spawned a wide debate on the political economy of intrastate violence.

8 Gerson and Colletta, 2006, Privatizing Peace.

9 David Vogel, The Market for Virtue: The potential and limits of corporate social responsibility.

10 Allan Cullen and Nat J. Coletta, Privatizing Peace: From Conflict to Security (New York: Transnational Publishers, 2002).

Peace Magazine Oct-Dec 2009

Peace Magazine Oct-Dec 2009, page 20. Some rights reserved.

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