Can Might Make Rights? · BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS by Jane Stromseth, David Wippman -- Read -- Imperial Library of Trantor

Index

Cover Half-title Title Copyright Dedication Contents Acknowledgments Chapter One Introduction: A New Imperialism? Chapter Two Interventions and International Law: Legality and Legitimacy

I. The International Legal Framework: The UN Charter and the Use of Force II. From the Cold War to the Post-Cold War Period: Intervention in an Evolving Strategic Context

A. UN Security Council-Authorized Interventions B. Regional Interventions and the Common Interest C. Kosovo and the Dilemma of "Humanitarian Intervention"

III. After 9/11: Intervention in the Face of New Threats to Security

A. Self-Defense against Terrorism B. The Controversy over "Preemption" C. The 2003 War in Iraq

IV. International Law and Legitimate Objectives of Intervention V. Local Perceptions of an Intervention's Legitimacy CONCLUSION

Chapter Three What Is the Rule of Law?: A Pragmatic Definition and a Synergistic Approach

I. The rule of law: "i know it when i see it"? II. Background: rule of law promotion: a growth industry III. Definitions and reasons IV. A pragmatic definition of the rule of law V. The synergistic approach

Chapter Four Blueprints for Post-Conflict Governance

I. The process of blueprint design

A. Problems Common to Post-Conflict Blueprints B. The Process of Constitutional Design

1. Pursuing a Phased Constitutional Process 2. The Pitfalls of Poorly Managed Constitutional Process

II. Blueprints for managing state failure

A. Liberia: Failing Elections B. East Timor and the Advantages of Independence

III. Blueprints for resolving identity-based conflicts

A. Blueprints for Identity-Based Conflicts: From Power Sharing to Minority Rights

1. Consociationalism in Bosnia 2. Kosovo and Minority Rights

IV. Mixed cases: afghanistan and iraq

A. Afghanistan: Center and Periphery B. Iraq: Braking Constitutionalism

CONCLUSION

Chapter Five Security as Sine Qua Non

I. Understanding Security Broadly

A. Causes and Consequences of Government Collapse B. Seeing Security in Context

II. Security in the Short Term

A. The Post-Intervention Window of Opportunity B. The Security Gap

1. Enhancing the Military’s Security Capabilities 2. Enhancing CIVPOL Capabilities

III. Dealing with Spoilers: The Warlord Challenge

A. Fight or Coopt?

1. Somalia: Bungling the Warlord Challenge 2. Liberia: If You Can’t Beat ’Em, Elect ’Em 3. Sierra Leone: If You Can’t Beat ’Em, Join ’Em 4. Bosnia: Entrenching Spoilers 5. Afghanistan: Divide and Misrule 6. Iraq: Pursuing Spoilers and Making Enemies

B. DDR and Its Discontents

IV. Rebuilding Domestic Security and Justice Capabilities CONCLUSION

Chapter Six The Challenge of Justice System Reform

I. The "Synergistic" Approach to Justice System Reform

A. An Ends-Based, Strategic Approach B. An Adaptive, Dynamic Process with a Systemic Focus C. Getting Concrete: Building Core Capacities on Solid Foundations

II. Understanding the Environment: The Importance of Strategic Assessment III. Strengthening Critical Capacities in Law and Law-Making

A. The Potential Role of Temporary Codes B. Law Reform: Goals and Challenges

1. Trap to Avoid: Failure to Provide for Applicable Law That Enjoys Local Legitimacy 2. Improving National Law: Domestic Legitimacy and Beyond 3. The Potential Role of Model Codes

C. Reforming Law-Making Processes

IV. Strengthening Law Enforcement Capacity

A. Police Reform in Post-Conflict Societies

1. Transforming Police–Society Relations… 2. Goals of Police Reform 3. Constructing a Balanced Police Force That Enjoys Legitimacy 4. Protecting and Empowering Women 5. Police Training and Professionalism 6. Changing Organizational Culture and Building Accountability

B. Police-State Relations: The Critical Larger System

1. Haiti’s Mixed Record of Police Reform 2. Trap to Avoid: Institution-Building without Corresponding Political Reform 3. Another Trap to Avoid: Unbalanced Reform in the Justice System

C. Prison Reform: Too Often Neglected

1. Critical Elements of Prison Reform: Rules, Training, and Accountability 2. Key Additional Factors in Sustaining Prison Reform

V. STRENGTHENING THE COURTS

A. The Complexities of Post-Conflict Court Reform B. Strengthening Judiciaries after Conflict

1. Merit-Based Appointment: A Fundamental Reform 2. Effective Training and Education: A Critical Need 3. Trap to Avoid: Premature Empowerment of Judges, before Adequate Training and before Credible Disciplinary and Removal Mechanisms Established

C. A Good Practice: Finding an Effective Mix of International and Local Jurists D. Additional Reforms to Encourage Impartial Adjudication

1. Resources and Budgets 2. Increasing Transparency

E. Good Practice: Nurture Sustainable Justice System Reforms by Investing in Civil Society, Legal Education, and Programs to Increase Access to Justice

CONCLUSION

Chapter 7 Accountability for Atrocities: Moving Forward by Looking Backward?

I. "Transitional Justice" in Evolution: The Accountability Learning Curve II. The Challenge of Demonstrating and Institutionalizing Accountability Norms

A. Demonstration Effects B. Capacity-Building Effects

III. International Tribunals and Their Impact on Domestic Rule of Law: The ICTY and the ICTR

A. The ICTY's Impact on Domestic Rule of Law: Kosovo and Bosnia B. The ICTY and Serbia C. The ICTR: An Ambivalent Domestic Impact

IV. Hybrid Tribunals and Their Impact on Domestic Rule of Law

A. Kosovo's Hybrid Arrangement: Mixed Results B. Timor Leste: "Independence Is a Form of Justice" C. East Timor’s Innovative Community Reconciliation Procedures D. Sierra Leone’s Special Court: A Promising Hybrid

1. Outreach: Demonstrating Accountability and Fair Justice 2. Capacity-Building in Sierra Leone

E. Sierra Leone’s Truth and Reconciliation Commission

V. DOMESTIC APPROACHES TO ACCOUNTABILITY AND THE POTENTIAL IMPACT OF THE ICC

A. Iraq’s Special Tribunal: Trying Saddam Hussein B. Afghanistan: Evolving Prospects for Accountability C. The Potential Impact of the ICC

CONCLUSION

Chapter Eight Creating Rule of Law Cultures

I. Doing no Harm: How Interveners Can Avoid Undermining Their Own Efforts II. Doing Some Good: Fostering a Rule of Law Culture

A. Good Practice: Nurture a Rule of Law Culture by Investing in Civil Society

1. Investing in Civil Society Organizations 2. Investing in Legal Education

B. Traditional Dispute Settlement Mechanisms and Their Relationship to Formal Justice Institutions C. The Role of Paralegals and Mediators

III. Putting It All Together

A. Getting to the Grassroots B. Strengthening Civil Society C. Shaping the Next Generation D. Giving People a Stake E. Including Marginalized Groups F. Being Creative

CONCLUSION

Chapter Nine Enhancing Rule of Law Efforts: Planning, Funding, and Local Ownership

I. Planning and Coordination

A. Obstacles to Effective Planning B. Enhancing Interveners’ Capacity for Planning and Coordination

II. Resources and Commitment

A. Half Measures Are Often Worse Than None at All B. Finding Funds

III. Improving Local Participation

A. Change from Within B. The Dilemmas of Local Ownership C. Handling Value Conflicts

CONCLUSION

Chapter 10 Conclusion Index

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