JURIST Guest Columnist Kevin Govern, Assistant Professor of Law at the US Military Academy, West Point, NY, discusses the evolution of rule of law challenges in Iraq post-2003 and proposes new criteria for achieving and assessing Iraq's status as a "rechtsstaat", i.e. a law-based state…

Since 19 March 2003, when Operation Iraqi Freedom (OIF) commenced, literally thousands of individuals, in nearly two dozen governmental and nongovernmental entities, business enterprises, and organizations, have worked on rule of law activities in Iraq. These entities, enterprises, and organizations often work without a common concept of what constitutes "rule of law." They lack a concerted strategy with, by, and for the people and Government of Iraq to achieve a “rechtsstaat,” an Iraqi state in which the rule of law prevails. The recent Iraq Study Group and National Intelligence Estimate assessments, reflecting upon increasingly unsettled conditions in Iraq, indicate the time has come for a revised approach to rule of law efforts in Iraq.

Historical Challenges to Defining Rule of Law

Some scholars trace the origins of rule of law to Article 39 of the 1215 Magna Charta legally limiting the king’s power. In fact, there is no one consistent or binding definition for rule of law or “rechtsstaat” in international law or U.S. law and policy. The German term “rechtstaat”, often translated as “the rule of law” in English, comes from the root words “Recht” (the law) and “Staat” (the State) and was first used by nineteenth century legal theorists Roben von Mohl and Rudolph von Gneist. Von Gneist firmly believed in 1867 that a “free legal profession would be the Archimedean lever for accomplishing the liberal project of personal rights and the rule of law.” Even Nazis and Communists exercising unchecked authority have claimed the use of laws to achieve “rechtsstaat” status, but V.J.J.M Bekkers, amongst others, has asserted that in a “rechtsstaat” law defines the constitutional rights of citizens against governmental abuses of power.

In 1991, the European Commission for Democracy defined “rechtsstaat” (alternatively "état de droit," "stato di diritto") as “the requirement that the law be respected: domestic law within the State, and international law in the context of international society. Put another way, the State — in the broadest sense of the term — must rule out force, arbitrariness and injustice, abiding scrupulously by the law.”

From the U.S. political and military perspective, there is no one shared definition or set of goals and objectives in law, policy, or doctrine to define “rule of law” or “rechtsstaat.” The U.S. Department of State (DOS) has, in testimony before Congress, conceded that “there is no commonly agreed upon definition for the rule of law, [but the DOS] takes it to mean a broad spectrum of activities including a constitution, legislation, a court system and courthouses, a judiciary, police, lawyers and legal assistance, due process procedures, prisons, a commercial code, and anticorruption activities.”

The US Agency for International Development (USAID) is independent from the DOS but operates in accordance with DOS foreign policy guidance. USAID finds that rule of law “embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights.” Curiously though, in the FY 2004-2009 Department of State and USAID Strategic Plan, “Security – Democracy — Prosperity Aligning Diplomacy and Development Assistance,” uses the term "rule of law" sixteen (16) times, yet that strategic document never defines the meaning of rule of law.

The U.S. Department of Defense’s (DOD) most recent Annual Report to Congress from 20 November 2006 noted that “rule of law requires a functional legal code, police to investigate crimes and enforce laws, criminal and civil courts to administer justice, and prisons to incarcerate offenders.” Curiously, the DOD had not previously defined rule of law in such annual reports to Congress, but did identify which institutions in Iraq contributed to rule of law.

Joint Publication (JP) 3-57.1, the DOD’s Joint Doctrine for Civil Affairs, issued in post-9/11 April 2003, only cites rule of law twice by way of quotes but lacks definitions for same. The DOD’s most recent pronouncement on post-conflict operations (or “Stability, Support, Transition and Reconstruction — “SSTR” operations), dated November 2005, endorsed but did not define the concept of rule of law.

The ground breaking, highly-touted, and long-awaited Field Manual (FM) 3-24, Counterinsurgency, has thirty-three (33) references to the rule of law, yet no clear and explicit definition of what constitutes that.

Finally, the U.S. military force most likely to revise its rule of law operations, the U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), recently reissued doctrine on rule of law operations. Field Manual (FM) 3-05.40, Civil Affairs (30 June 2006), contains some definitions which comport with, but do not exactly mirror, the aforementioned rule of law definitions, such as “[t]he purpose of rule of law operations is to create security and stability for the civilian population by restoring and enhancing the effective and fair administration of justice.”

Just as the old “Army of One” recruiting motto passed out of use, when the necessity for multilateral efforts became more evident, FM 3-05-40 emphasized that “[r]ule of law operations will rarely, if ever, be exclusively a military or even a USG [U.S. Government] activity. Rule of law operations must be a collaborative effort including … U.S. military assets … other agencies of the federal government, … coalitional and other national elements, … NGOs engaged in judicial and legal reform … HN legal professionals … HN law enforcement personnel, and other HN government officials.”

Departing United Nations Secretary-General Kofi Annan said 11 December 2006 that “the only way to achieve the key principles of international relations — collective responsibility, global solidarity, the rule of law, mutual accountability and multilateralism — is by making the best possible use of the United Nations” and that there can be “no security without development and no development without security, and neither can be sustained in the longer term without being rooted in the rule of law and respect for human rights.”

Back to Babylon — Iraq’s Rule of Law Heritage, or Lack Thereof

If we were to look back to the days of Babylon, we would note that Iraq was quite possibly the birthplace of the rule of law. Hammurabi’s rule over Babylon from 1795-1750 BCE had the first discovered, publicly proclaimed and published laws that “regulate[d] in clear and definite strokes the organization of society.”

In “modern” legal history, we might look back to classical Islamic civilization, when in 632 CE the assembly of the faithful followers of Muhammad (praise be unto him) elected Abu Bakr (may Allah be pleased with him) as the first Caliph, or khalifat rasul Allah' (successor of the Prophet of God). The Caliph’s inaugural speech reminded those ruled that “[i]f I give you a command departing from the Qur'an or the practice of the Prophet, you owe me no obedience, but must correct me. Truth is righteousness, and falsehood is treason.”

Professor Khaled Abou El Fadl, testifying befo
re the U.S. Congress in 2003, said Iraq before Saddam Hussein was the “cradle of civilization” in developing legal institutions and substantive laws of the Arabic speaking world and that the “major urban centers of Iraq, Baghdad, Basra, and Kufa, played central roles in the birth of Islamic jurisprudence … over the span of a thousand years.”

El Fadl conceded, though, that “since the late 1970's the Iraqi legal experience can be summed up as the following: There was no rule of law in Iraq, but only the rule of fear.” America’s officially-broadcast position on the pre-OIF Iraqi “rechtstaat” was that “Saddam Hussein didn’t believe in the rule of law. He exercised power through a sophisticated structure of security services, revolutionary courts, emergency decrees, informers, and the crushing of dissent.”

On February 19, 2003, a month after Operation Iraqi Freedom commenced, the U.S. Institute for Peace (USIP) held a workshop on “Establishing the Rule of Law in Iraq.” The USIP anticipated that the immediate post-war period was likely to be difficult, confusing, and dangerous. The USIP opined that the U.S. was “ill prepared to perform this function,” yet establishing the Fourth Geneva Convention would oblige the U.S-led coalition to advance rule of law in Iraq.

Rule of Law Challenges in Iraq: Evolution, Not Resolution

The “Future of Iraq Project” was a $5 million DOS effort commissioned in October 2001 and continued through March/April 2003. More than 200 lawyers, engineers, and business people in twelve of seventeen working groups issued reports crafted by Iraqi and other experts on the way ahead for Iraq’s government, education, and commercial systems in a post-intervention Iraq. The Future of Iraq Project predicted it would require time, money, effort, and indeed lives to move beyond discussion and accomplish actual implementation.

Journalists Eric Schmitt and Joel Brinkley noted the report “forecast[ed] widespread looting in aftermath of Hussein's fall and recommended force to prevent chaos.” Internet archivist Russ Kick claimed “[t]he project's observations and recommendations were almost wholly ignored by the administration during its pre-war planning for the occupation [but soon] after the invasion, though, CD-ROMs of the reports were sent to the staff of the Coalition Provisional Authority.”

Fast-forward nearly four years to July 2005, when the DOD assessed its efforts to date through a report to Congress on “Measuring Stability and Security in Iraq.” That report asserted that “[t]he ultimate goal of the transitional political process is for Iraq to be governed by an effective and representative democratic system that is: supported by the Iraqi people; capable of exercising responsibility for managing Iraq’s affairs, including security; accepted as legitimate by the international community; and committed to promoting civil society, the rule of law, and respect for human rights.”

The DOD believed that one key measure of progress in Iraq was the establishment of a constitutional and democratic Iraqi government — law enforcement, justice, and the corrections system, along with Iraqi Security Force (ISF) development.

The DOD also recognized the DOS’ role in rule of law advancement. The U.S. Embassy in Iraq had been promoting the rule of law through what the State Department’s Bureau of International Narcotic and Law Enforcement Affairs’ (INL) touted as a “comprehensive, integrated Rule of Law program.”

In late 2005, the DOS Office of Inspector General (OIG) identified approximately $400 million being spent by multiple federal agencies for rule of law programs in Iraq, in addition to $1 billion for police training. Approximately $300 million went to programs for building Iraq’s physical infrastructure for justice, and the remaining $100 million provides for a variety of capacity-building programs.

The DOS OIG found “[m]ost of the money for rule-of-law programs appears to have been well spent.” Also that “[a] fully integrated approach to rule-of-law programs in Iraq is essential and does not exist at present.” Further, the DOS found that “[a] new phase is beginning, in which the defining characteristic must be the successful transition from a U.S.-funded and directed program to a sustainable Iraqi-directed program.” The DOS believed that there was “less than optimal coordination within Washington, among U.S. elements in Iraq, and between Washington and Iraq,” and that “[b]asic to the success of democracy and good governance is an effective anticorruption regime … and [s]ecurity requirements and logistics must be heavily factored into the current cost of activities in Iraq.”

In August 2006, Attorney General Alberto Gonzales met with Iraq's deputy prime minister ostensibly to promote "the rule of law." Gonzales met with the Barham Saleh and the Iraqi High Tribunal to provide "what we can … to help promote the rule of law and also help promote security in this country."

This effort came none too soon, as the DOS’ assessment of Iraqi justice, most notably the Iraqi Ministry of Justice (MOJ) Iraqi Corrections Service (ICS) was that “ICS [Ministry of Justice Iraqi Corrections Service] generally imprisoned civilians under the rule of law, accompanied by a valid confinement order from a judge … [but in] practice ministries acting outside the scope of their legal authority detained numerous individuals and enabled many other serious abuses.”

The Center for Strategic and International Studies (CSIS), in October 2006, opined regarding “rechtsstaat” aspirations in Iraq that “[t]here is no real consensus on what legal system to use, courts do not exist in many areas and are corrupt and ineffective in many others. Legal authority, like governance, is devolving down to the local level.”

The Supreme Iraqi Criminal Tribunal’s trials of Saddam Hussein and seven co-accused were noted as rule of law challenges and triumphs, especially in spite of the October 2005 killings of defense team members and suspension of proceedings until representation was reconstituted.

All of this introspection and assessment so far has lacked a certain precision. To find that, we can look at the World Bank’s measures of “rechtstaat”-related measures in Iraq. For the World Bank, “rule of law measures the extent to which agents have confidence in and abide by the rules of society, in particular the quality of contract enforcement, the police, and the courts, as well as the likelihood of crime and violence.” In 2005, however, Iraq came almost dead last among 213 nations evaluated (see generally http://siteresources.worldbank.org/ INTWBIGOVANTCOR/Resources/1740479-1150402582357/2661829-1158008871017/gov_matters_5_tables.pdf), tying for second-to-last place overall (along with the Democratic Republic of the Congo / Zaire, and only ahead of Somalia). The Bank report noted that in Iraq was in the:

• 9th percentile for Voice and Accountability (vs. 12th percentile for Afghanistan and 89th % for the U.S.);
• 0 (zero) percentile for Political Stability (vs. 2nd percentile for Afghanistan and 49th percentile for the U.S.);
• 1st percentile Government Effectiveness (vs. 9th percentile for Afghanistan and 92nd percentile for the U.S.);
• 6th percentile for Regulatory Quality (vs. 5th percentile for Afghanistan and 92nd percentile for the U.S.), and;
• 0 (zero) percentile for Rule of Law (vs. 1st percentile for Afghanistan and the 92nd percentile for the U.S.);
• 5th percentile for Control of Corruption (vs. 2nd percentile for Afghanistan and the 92nd percentile for the U.S.).

Perhaps the way ahead to rule of law “rechtstaat” success in Iraq should include one common definition for what rule of law is, what it must includ
e, and commonly accepted measures of effectiveness for rule of law efforts!

In 2004 the US Institute of Peace (USIP) came to the following conclusions on Rule of Law in Iraq:

• Establishing public order in the aftermath of an international military intervention is “job one.”
• Military combat units, however, are neither trained nor equipped for riot control and law enforcement functions.
• No rapidly deployable U.S. civilian capacity exists to provide the full spectrum of rule of law functions.
• The optimal way to remedy this critical deficiency would be to establish a Rule of Law Reserves (RLR) and a single federal Office for Rule of Law Operations (ORLO) that would have the permanent authority to recruit, deploy, and manage constabu¬lary police units and individual police, judges, attorneys, court staff, and corrections officers in peace and stability operations.
• Locating ORLO in the Office of the Secretary of State would give it the access to senior policymakers that its mission requires.
• ORLO should be placed within a larger construct, perhaps a new agency or organiza¬tion for stability operations.
• By preventing a public security gap, the process of providing relief and reconstruction assistance will be greatly facilitated and the transition to stable governance accelerated.

A Modest Proposal for Achieving Complex Goals — Three Criteria for Rule of Law in Iraq

I would offer the following three criteria as certain requirements for making real rule of law inroads in Iraq:

• Creating a baseline of security and order in Iraqi society;
• Harmony if not unity of effort towards accomplishing identified rule of law objectives, and;
• Continuity of effort in the way ahead.

Creating a baseline of security and order in Iraqi society

Referring back to the first USIP conclusion, security is “job one.” Even before Operation Iraqi Freedom, experts recognized the necessity for creating the baseline of security and order in Iraqi society, where there never had been a baseline under Saddam Hussein’s brutal regime.

The Working Group on Transitional Justice in Iraq and Iraqi Jurists Association said in March 2003 that “the role of an independent judiciary cannot be over-emphasized, particularly in a society where individual rights and freedoms have been trampled upon so comprehensively as they have been in Iraq under Saddam Hussein.”

Karl Rohr noted in a recent Naval Postgraduate School (NPS) thesis that: “Immediate security, rule of law, and governance are accomplished by the rapid establishment of regional development zones (RDZ) and insertion of provincial reconstruction team’s (PRT).” Rohr went on to explain that a PRT “…as envisioned in Progressive Reconstruction is an interdisciplinary civilian-military unit designed to provide a stabilization and reconstruction capability to a military intervention.”

Rohr had pessimistically observed that: “… during OIF-1 [initial combat operations of Operation Iraqi Freedom] the rear areas were not organized to accomplish this task [or restoring public order] and it was not accomplished. The rear area commanders did not exercise the rule of law as they were not manned to do so.” Rohr observed those commanders’ entire focus was “supplying of the frontline troops — a monumental task in and of itself.”

Ensuring adequate and appropriate training of judges, prosecutors, and attorneys is also a challenge. The U.S. Government Accountability Office (GAO) reported in 2004 that the U.S. DOJ “trained hundreds of Iraqi judges on basic tenets of human rights, due process, and rule of law.”

Predicting into the future, the DOJ anticipated that: “Iraq’s judicial system would take years as a competent body of legal professionals is developed. The lack of a system of data collection and measurement makes it difficult to accurately assess the functioning of the judicial system … by February 2004 no progress had been made on developing these measures.”

Harmony if not unity of effort towards accomplishing identified rule of law objectives

Is there some supreme irony that the people of Iraq, whose home includes the legendary town of Babel, would find themselves hearing the tongues of many nations and organizations pronouncing rule of law differently, let alone seeing their efforts as sometimes divergent and other times convergent? In a word, YES!

During the initial phase of Operation Iraqi Freedom, the USIP did suggest another sort of trained, equipped, deployable and integrated rule of law organization that would employ interagency and coalitional efforts as a variation on the above-mentioned “ORLO” theme: “a civilian ‘Stability Force’ composed of constabulary, police, and legal teams of prosecutors, judges, and corrections officers … [to] arrive in Iraq as soon as possible after conclusion of the conflict. It should work with local police, courts, and prisons to maintain public order, control crime, prosecute war criminals, protect minorities, and ensure respect for human rights.” The USIP believed the U.S. should be prepared to bear the burden of establishing the rule of law in Iraq: “[t]his will not be easy, but the contribution of a U.S. Stability Force to creating sustainable security will be more than worth the effort.

As of the date of this writing, no overarching interagency-coalitional solution has yet to be introduced as a way to establish harmony, if not unity, of effort towards accomplishing identified rule of law objectives.

What has been accomplished in harmony and unity of effort as a distinct success story has in large part been a tribute to the so-called “Provincial Reconstruction Teams” (or PRTs). These distinctive and highly successful interagency teams in both Afghanistan and Iraq advance not only harmony but unity of effort towards accomplishing rule of law objectives In 2006, the GAO noted how the U.S. embassy in Baghdad and Multi-National Force-Iraq (MNF-I) was developing provincial assistance teams as a component of an integrated counterinsurgency strategy. These teams would consist of coalition military and civilian personnel who would assist Iraq’s provincial governments by:

1. Developing a transparent and sustained capability to govern;
2. Promoting increased security, rule of law, and political and economic development; and
3. Providing the provincial administration necessary to meet the basic needs of the population.

U.S. President Bush announced on 10 January 2007 that the PRT program would expand in Iraq; that it will include at least 8 new coalitional PRTs, in addition to the existing 10 (i.e. at least 18 in total): five new PRTs in Baghdad, two in Anbar, and one in Balad, in addition to already existing U.S.-led PRTs in Ninewa, Kirkuk, Salah ad Din, Diyala, and Babil and Coalition-led PRTs in Basrah (UK), Dhi Qar (Italy), and Erbil (Korea).

Continuity of effort in the way ahead

The President’s 30 November 2005 National Strategy for Victory in Iraq laid out a three-tracked, integrated strategy for creating and continuing conditions for the rule of law in Iraq:

• The security track emphasizes developing the capacity of Iraqis to secure their country.
• The economic track will help the Iraqi government set the foundation for a sound and self-sustaining economy with the capacity to deliver essential services.
• The political track works to forge a broadly supported national compact for democratic governance.

On continuity of effort, Rohr recognized that long term planning and setting conditions is critical for measurable, tangible rule of law successes: “[c]reating the organization for governance, security and the rule of law is the most important step of Progressive Reconstruction.”

In the DOD’s most recent, November 2006, report to Congre
ss on “Measuring Stability and Security in Iraq,” the DOD noted “incremental progress in the Government of Iraq’s willingness and ability to take over responsibility, to build institutions, and to deliver essential services. This progress is notable given the escalating violence in some of Iraq’s more populous regions and the tragic loss of civilian life at the hands of terrorists and other extremists.” The DOD also observed how “Iraqi Security Forces (ISF) ha[d] assumed more leadership in counter-insurgency and law enforcement operations as they approach[ed] completion of the programmed goals for training and equipping.”

Sustainable continuity in rule of law efforts is measured not so much by money spent but whether money is spent well. Towards that end, the USAID’s Office of Democracy and Governance Rule of Law Program obligated and made available through Fiscal year 2007 nearly $5.9 million on democracy, conflict and humanitarian assistance dollars.

Regardless of whatever rule of law or “rechtsstaat” definition is used, these funds have and will be used in public-private partnerships with US, Iraqi, and other national entities. In USAID’s estimation these efforts will be

• Supporting the role of legal systems in consolidating democracy;
• Promoting respect for human rights;
• Improving the institutional administration of justice;
• Increasing access to justice; and
• Building local constituencies for justice sector reform and improvement.
  Keeping to its USAID objectives from 2003, Iraq must, at a minimum, ultimately defeat the insurgency, transform the Iraqi government, create a market economy, and prepare for the future.

Considering all this, some elemental but essential questions remain yet unanswered on this and all other aspects of advancing rule of law in Iraq:

• Who will help the Iraqis achieve rule of law?
• What additional measures may become necessary as rule of law progresses or regresses in Iraq?
• When will success be achieved and what will it look like?
• Where do these initiatives have to be implemented and secured if not everywhere?
• Why will Iraqis and others continue this effort or resist it?
• How much will this cost in lives and in currency if rule of law is not achieved in Iraq?

Conclusion

This commentary has drawn mightily, if not entirely, upon the ideas and efforts of others, yet I hope this collection, analysis, and commentary might cause readers to rethink recent rule of law efforts in Iraq as the "way ahead" is contemplated and implemented.

Perhaps the following two quotes best capture the essence of a comprehensive and multifaceted rule of law "way ahead" strategy:

"Recognizing that order must come through law and that the rule of law requires ordinary citizens to have a stake in upholding the rules means paying attention to those citizens' most basic economic and social needs around the world."

– Princeton Project on National Security, 27 September 2006; and

"Development, security and human rights must go hand in hand; and that there can be no security without development and no development without security and neither can be sustained in the longer term without being rooted in the rule of law and respect for human rights."

– UN Secretary-General Ban Ki-Moon, 14 December 2006

Kevin Govern is an Army Judge Advocate General’s Corps Officer, teaching Comparative Legal Systems, Constitutional and Military Law, the Law of Armed Conflict, and lecturer on other legal aspects of armed conflict and stability, support, transition and reconstruction operations. He has served as a uniformed legal advisor at every echelon from Airborne Battalion Task Force to Unified Combatant Command (1987-2007). Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, the U.S. Army, or the U.S. Military Academy
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