by Agnès Hurwitz with Reyko Huang (eds). Boulder, London: Lynne Rienner Publishers, 2008. 351pp. Cloth $59.95. ISBN: 9781588265319. Paper $24.50. ISBN: 9781588265074.
Reviewed by Daniel C. Kramer, Political Science-Economics-Philosophy Department, College of Staten Island CUNY. E-mail dkramer1 [at] si.rr.com.
In recent years, many actors in the international realm have become interested in implementing the “rule of law” in societies torn by conflict. The United Nations has recently become enthusiastic about the subject: in 2004 its Secretary General released a report dealing with the problem of how to bring about the rule of law in lands riven by or newly emerging from strife. The volume under review is the product of the Rule of Law Project of the International Peace Academy and contains twelve essays written by academics, NGO and UN staffers, a lawyer, and an official (the editor, Agnès Hurwitz) in the Office of the President of the International Criminal Tribunal for the Former Yugoslavia.
Chapter 1, written by Hurwitz, is an overview of the volume. She notes that programs seeking to institute the rule of law in nations that have recently suffered from civil war have one or more of three broad goals: bringing about security, protecting human rights, and/or spurring economic development. She also asserts, and here she is in line with just about every contributor to the book, that these programs have rarely achieved their objectives.
Obviously, any work dealing with the “rule of law” has to define this rather vague concept, and Rama Mani devotes Chapter 2 to this very task. Mani contends, accurately, that though there are numerous definitions. These can be separated into two broad categories, to which she (and other scholars) refer as the “minimalist” and the “maximalist” conceptions, which mirror, respectively, legal positivism and natural law. As she clearly states the matter, both conceptions require that “laws be general, promulgated, clear and open, noncontradictory, prospective, constant and relatively stable, and possible, and that official action be congruent with declared rule” (p.25). This is all that the minimalist position demands. However, the maximalist position adds that the rule of law requires, as well, that there be equality before the law and respect for human rights. She rightly notes that the minimalist view is consistent not only with liberal democracy, but also with, e.g., “a theocracy or monarchy that follows established and regular procedures” (p.24). This reviewer would like to add that a system of state-required racial segregation is also consistent with the rule of law in the minimalist sense, if the laws mandating the apartheid are published, non-retroactive, clear, and consistently enforced by civil servants and judges. Obviously, such a regime would violate the maximalist view, and Mani strongly favors the use of the maximalist view by organizations and individuals seeking to [*428] restore health to nations that have been afflicted by massive internal violence.
Chapter 3, by Balakrishman Rajagopal, contends that overemphasizing the concept of the rule of law as a solution to the problems of such nations can blind us to the fact that the three major objectives of the rule of law – as articulated in the title of the book and by Hurwitz in Chapter 1 – can contradict one another, that often trade-offs have to be made among these goals. Balakrishnan, without explicitly making the point, adopts a “minimalist” definition of the rule of law, declaring that it is a procedural doctrine that emphasizes economic development over human rights which can threaten the attainment of the latter by leading to concentration of wealth in a few hands. Moreover, he points to the example of present-day China to indicate that creation of clear property and contract rights demanded by the rule of law is not always necessary to rapid economic development. As for the security sought by imposition of the rule of law, he points out that the “war on terror” in many nations has diminished rather than promoted human rights. To strengthen his point he could have brought up the fact that the American government has since September 11, 2001, harshly interrogated (tortured?) and detained without trial hundreds of individuals suspected of having ties to terrorism.
Chapter 4 by Chandra Lekha Sriram discusses the use of the rule of law as a tool for conflict prevention, as distinguished from its being used to help a nation get on its feet after a civil war. She admits that it is mainly organizations such as the World Bank and the UK’s Department for International Development that have thought about this problem, and that on the whole there has been much less concern with it than about post-conflict recovery. She is aware that pre-conflict prevention is difficult to accomplish. One method of doing this for this is to deny aid to a country that, for example, refuses to reform its judiciary or delete unfair provisions from its laws or constitution. But a nation, though fragile, is always free to turn down the aid. In fact, she accurately says at the end of her essay that “governments not emerging from conflict….are unlikely to permit international interference of the sort so common in peacebuilding”.(p. 85)
Chapter 5 by William G. O’Neill then discusses various instances where peacekeeping groups such as UN agencies or NATO faltered, at least at first, when attempting to bring the rule of law to post-conflict societies. For example, the UN Interim Administration in Kosovo (UNMIK) was slow in stopping looting and gang crime after the NATO bombings of 1999 and decided to have those accused of war crimes tried by local judges. It was not until UNMIK realized that Serbs could not get fair trials in Kosovo courts that it decided to use foreign judges and prosecutors for certain sensitive cases. O’Neill feels that the UN and other peacekeeping groups might have to thoroughly train or retrain local police forces and judges and improve prisons, get local actors involved in rule of law reform, and educate the public on the importance of implementing the rule of law. One obvious way of providing post-conflict nations with elements of the rule of law is to draft model codes for criminal law, criminal procedure and police powers and duties, which, as Colette Raush and [*429] Vivienne O’Connor note in Chapter 6, has been done by the US Institute of Peace and the Irish Centre for Human Rights in cooperation with two units of the United Nations. As the authors rightly point out, these codes probably cannot be transferred in their entirety in any given nation. They will be rejected and thus useless if they completely bypass the country’s existing legal system or ignore the advice of local experts. And they will also not have much of an impact if adequate translators and/or judicial personnel are lacking there.
Simon Chesterman’s Chapter 7 discusses the concept of “ownership,” a term much used by those who study rule of law and other reforms in poor nations or in those recently plagued by civil war. Contrary to what this reviewer thought upon reading the title of the chapter, “ownership” as used in this context does not mean the seizure of property (e.g., oil fields) by the foreign nations or groups involved in implementing the reforms. Rather, it involves convincing the citizens of the aided country that the rule of law is not being imposed on them but is in a sense their “own” policy. Chesterman rightly points out the vagueness of the term “ownership” and says that it can be broken down into six senses. For example, it can refer to mechanisms for having local actors participate in decisions, holding international officials accountable, and taking into account local circumstances and culture, and the like. However, it is also important that power not be transferred too quickly: UNMIK’s unhappy experience with initially using local judges for trying persons accused of war crimes is one example demonstrating this point. Chapter 8 by Pablo de Greiff studies the problem of reparations to victims of human rights abuses. Reparations, he argues, are a form of recognition owed to citizens whose rights have been violated and can also build trust among citizens, a trust that is needed if the legal system is to function well. He lists several characteristics that a reparations effort can feature. For example, it can cover a small or a large number of beneficiaries, make restitution for just one crime or for several crimes, grant the beneficiaries a lot of money and/or other benefits or a minimal amount of such, and so on. De Greiff is aware of the related problem of punishing individuals who committed the rights abuses but intentionally ignores this issue because much more attention has been paid to it than to that of reparations for those seriously injured by their efforts.
Chapter 9 by Agnès Hurwitz treats of the relationship between the rule of law and housing, land and property (HLP) arrangements. She declares that HLP conflicts not only can bring about civil war but can make the recovery from the struggle more difficult. The rule of law can alleviate these quarrels in several ways. For example, it can reduce severe HLP inequalities, provide fair ways of settling HLP disputes, restore property to those who have been unfairly deprived, and provide security of tenure. Even the World Bank, she points out, recognizes the need for some sort of HLP redistribution where massive inequalities and serious rural poverty prevail. She adds that some HLP programs designed to restore land to those from whom it was wrongly taken have been implemented half-heartedly at best. However, she does realize that HLP restitution programs create a dilemma [*430] where the current occupants have lived there in good faith for years. Chapter 10 by Madalene O’Donnell treats corruption as a threat to orderly recovery of a society from conflict. Corruption, she rightly points out, “undermines both state effectiveness (the ability to govern) and state legitimacy (the recognition of the right to govern)” (p.227). Moreover, she accurately says, corruption can slow growth by reducing investment and the amount of money available for health and education. Admittedly, she declares, anti-corruption efforts can have deleterious effects. They may, for example, lead to military takeover with attendant human rights abuses. Various remedies for corruption are suggested, and the failure of anti-corruption efforts in, e.g., Liberia, Afghanistan, and the Democratic Republic of the Congo are depicted. She concludes on a note that is a bit more optimistic: “even in postconflict settings, addressing corruption is emerging as a fundamental and early priority that is strongly supported by local populations” (p.251).
Reyko Huang’s Chapter 11 is entitled “Counterterrorism and the Rule of Law.” She truthfully notes that the rule of law cannot prevail in a state plagued by significant terrorist activities. Her focus is on the steps the United Nations and other international bodies have taken to combat terrorism. For example, the UN Security Council, soon after 9/11/2001, obliged member states to “prevent, suppress and criminalize the financing of terrorism; freeze terrorists’ financial assets,” among other things (p.267), and ordered that they to report back to a newly-established Counter-Terrorism Committee on the extent to which they were meeting these obligations. At first, all states reported, but soon few did. Huang admits that the role of the UN in this area is limited, because it is mainly up to individual countries to take steps such as these. She rightly worries that antiterrorist efforts can lead to violations of human rights, including the labeling of minority groups as pro-terrorist and the American incarceration of prisoners in various known and unknown detention centers.
Agnès Hurwitz sums up the preceding chapters in her concluding essay. She repeats the thesis that the goals of security, development and human rights protection that the rule of law is supposed to promote sometimes are in conflict. Thus, although she obviously feels that the rule of law ought to safeguard human rights, it cannot simply be conceived of as coterminous with human rights protection. But as a “maximalist” she feels that programs ought to seek to achieve more than “technical outcomes”(p.293). Finally, she sensibly adds that those charged with implementation in a particular country should have some familiarity with the local culture.
CIVIL WAR AND THE RULE OF LAW is a fine effort. As seen, it makes many perceptive points. It provides political scientists and lawyers with a great deal of information that is probably new to most of us and should stimulate thought about the problems with which it deals. This is true even for those chapters, e.g., Chapter 7 on “ownership,” that hardly mention the rule of law. Moreover, the collection realistically avoids much optimism about the question of whether the rule of law can be introduced reasonably quickly in states emerging from internal conflict, and depicts the possible inconsistencies [*431] among the three goals noted in the above paragraph.
Of course, the volume is not without flaws. The treatment of individual countries in each chapter tends to be too brief. Stromseth, Wippman and Brooks (2006) spend considerable time on rule of law problems in places like Kosovo and East Timor, and in this respect is more absorbing. Looking at specific sections of the book under review, Chapter 4 on Prevention and the Rule of Law could at least have asked whether international military action against a nation totally ignoring the rule of law might not be the best way to import it there. Chapter 6 on “ownership” condemns international authorities in Bosnia for firing a president of Republika Srpska because he refused to accept a moderate prime minister. The author seems to feel that this ignored the Republic’s need to be self-governing. But surely the international actors would have been negligent had they not opposed the president’s step, which threatened to make it less likely that the Republic would peacefully accept its status as an autonomous yet integral part of Bosnia-Herzegovina. Chapter 8 defends reparations as recognizing the citizenship of the victims and at creating trust among citizens. These points certainly are true but really cannot be used to defend the massive reparations paid by Germany to Israel as the heir to victims of the Holocaust, the majority of whom were not German citizens. Chapter 9 plays down the importance of awarding and registering titles to property as a tool for economic development. But common sense would say that a farmer is likely to grow more efficiently if assured that the land will remain in his/her hands. Chapter 10 draws a distinction between administrative (“petty”) corruption and “grand” corruption, such as illicit influence over legislation. The author’s arugment is not convincing on the need to make this distinction. Why is bribing a legislator necessarily worse than bribing a chief of police? Chapter 12 ought to have defined and/or illustrated the “technical outcomes” about which the author seems to be skeptical. Despite these quibbles, CIVIL WAR AND THE RULE OF LAW is an impressive work that could be used in upper-division and graduate courses on peacemaking or international organization..
Stromseth, Jane, David Wippman, Rosa Brooks. 2006. CAN MIGHT MAKE RIGHTS?: BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS. Cambridge and New York: Cambridge Univ. Press.
© Copyright 2008 by the author, Daniel C. Kramer.