Rule of Law in Iraq & Afghanistan

[jmm99]

Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain.

Anyway, I got through the first two chapters (which includes some of Ollie North and Jim Webb, +s to me); but I have to go back to the hamlet aerial and get the geography and timeline down. Son Thang was not My Lai; but it wasn't Haditha either.

And, yes, after 45 pages, I saw Gary Solis sitting at the prosecution table - e.g., his description of the carnage caused by military munitions (p.45). As a defense counsel, you try to keep out the blood and guts photos; but often that is not possible. To get exclusion, you probably have to stipulate points that the prosecution would otherwise have to prove. As Tony Waller did by pleading Guilty to most of the Specification, but Not Guilty to the Charge and to the rest of the Specification.

Bottom line: Gary Solis would be a formidible opponent (smart guy and good writer).

OK: I followed your tactical advice - books ordered (under $10 inc. shipping)

Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

Regards

Mike

[jmm99]

I could rip at Section 7 and rewrite many paragraphs. That would take a lot of time, which I'd rather devote to my Neanderthal Manual.

I did find three sections that stood out to me as being positive (even though written in something of a UNese dialect) - and worthy of some thought since they are principles.

First,

7.4.2 Act only with an understanding of the local context.

A proper rule of law assessment is vital because assistance should be designed in relation to the context rather than universal templates. A multidisciplinary team comprising both host nation and international actors, that covers both urban and rural areas, is optimal [JMM: is mandatory]. Consult the users of the system as well as justice institutions.

Key questions for assessment include the following:

• What does the formal justice system look like on paper and in practice? Can it perform basic rule of law functions?

• What are the informal rules, traditions, and culture that underlie the system and its capacity and needs?

• What subsystems of justice are used by the population, including non-state justice and policing?

• What are the broader conflict-related factors, including regional influences, the security/crime situation, how human rights are being protected, the socioeconomic and political context, the cultural context, and the treatment of marginalized groups?

• What was the role of the justice system in the conflict? Was it part of the problem or part of the solution?

• What are the key drivers and mitigators of conflict that are affecting or could affect rule of law?

From the People; back to the People, said Mao. In practice, Mao's movement failed in that regard. As stated, Mao's theory is the true Rule of Law; that is, the rules come in raw form from the People, are refined by the Government and sent back to the People for approval; and so on, to arrive at an acceptable product.

Of course, you can have Rule by Law, where the rules are made by the Government's fiat. So long as the People accept those rules, you have a workable system; and can call it "Rule of Law". If a significant portion of the People does not accept them (feel they are "unjust"), you have a problem.

Second,

7.4.5 Recognize interdependence.

Rule of law requires more than an exclusive focus on formal justice institutions. It is an interdependent system of many parts involving institutions that manage justice (e.g., ministries), law enforcement agencies, courts, prisons, oversight bodies, law reform agencies, and legal education institutions. The justice system also depends on interaction with non-state justice systems, non-state actors (e.g., civil society), and the general population. Progress in security, governance, economic development and social well-being are all dependent on a functioning rule of law system.

Accepted as written.

Third (three parts, all intertwined),

7.5.3 Approach: Legal Framework Assessment

Understand the existing legal framework as the first step in working toward a just one. Laws may be chaotic, meaning it is difficult to answer the question of what law applies. They may also be deficient, meaning they contain provisions that are inconsistent with human rights or are antiquated and fail to address common S&R challenges, such as property rights, human trafficking, and organized crime. In most war-torn states, the legal framework frequently exhibits signs of neglect and political manipulation, contains elements of discrimination and seldom meets the requirements of international human rights and criminal law standards. Legal framework assessment involves a comprehensive mapping of all laws and decrees - formal and informal - followed by an analysis that identifies areas that require urgent attention or longer-term treatment.

7.5.4 Gather, catalogue, and distribute the applicable laws first.

Reach out to legal practitioners, ministries, the courts, the police, the prison services, law schools, academics, NGOs, and legal diaspora to collect applicable laws. This will involve multiple sources of law. Identify and collect core documents including the constitution, criminal code, civil code, commercial code, civil procedure code, administrative law, citizenship law, and property law. Also, look for regulations, acts, bylaws, internal procedures (e.g., police procedures), and laws and decrees regulating the customary justice system or parallel justice systems (e.g., rebel laws). Catalogue the laws gathered and translate and share them among host nation and international colleagues.

7.5.5 Conduct a comprehensive analysis of the applicable law.

The laws gathered need to be analyzed to ascertain compliance with international human rights law, criminal law, civil law, and commercial law (e.g., treaties on organized crime; drug trafficking; the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child); to assess how religion impacts the law; and to understand what problems are not addressed in the laws. One body or organization should coordinate this analysis. Have a mixed team of academics and practitioners, legal and nonlegal, who can contextualize the law as it relates to the host nation. The analysis should be carried out by both host nation and international actors, and the team should consult widely within and outside the justice system. Start the assessment early; a full assessment can take up to one or two years.

One or two years - get real. Michigan did this in the 1960s - and was working out the kinks into the 1970s. That was under optimal conditions. I have complete agreement that this is how to do it. I also doubt it will be done.

Exactly how these "international actors" get involved - and how involved they get - are questions not answered in what I've quoted above.

Regards

Mike