Atrocities cast a long shadow. In post-intervention societies, reestablishing security, reconstructing governance institutions, and reforming the justice system are all crucial steps in promoting the rule of law, but important as they are, they are rarely sufficient to grapple with the legacy of past abuses. In most of the post-conflict societies discussed in this book, severe abuses were widespread in the period prior to intervention. The Balkan wars, for instance, were characterized by brutal massacres, mass rapes, and ethnic cleansing. Sierra Leone's civil war was characterized by the forced recruitment of child soldiers, widespread rapes and murders, and the gruesome mutilation of civilians. Afghanistan, Iraq, and East Timor also have had bloody pasts marked by severe abuses.

In such societies, the traumatization caused by widespread past atrocities does not end when the guns fall silent. Although nothing can undo the suffering caused by atrocities, ensuring that perpetrators face some reckoning may be critical to moving forward in countries recovering from violent conflict. Ensuring accountability may help victims move on and can also help signal to all members of post-conflict societies that, henceforth, such abuses will not be permitted to recur. Just as important, the process of ensuring accountability may, in some circumstances, reinforce broader efforts to reform the justice system.

As with every challenge discussed in this book, however, “ensuring accountability” is more easily said than done.

Over the past decades, most international and U.S. efforts to promote the rule of law have focused primarily on the “formal” dimensions of the rule of law: fostering new or improved courts, prison systems, constitutions, statutes, and so forth. In this book, we have repeatedly emphasized that such programs, though valuable, are unlikely to reap lasting benefits unless they are integrated into the far broader project of ensuring peace, stability, and security and unless rule of law programs proceed more or less simultaneously rather than consecutively.

Without security, neither governance nor economic development programs can hope to succeed. Without viable macro-level blueprints for governance, legal and judicial reform projects may be impossible, incoherent, or self-undermining. Without moderately effective police, criminals cannot be arrested; without an adequate prison system, they cannot be detained; without courts, they cannot be tried; without lawyers, they probably cannot be tried fairly; without functioning law schools, there can be no lawyers or judges. Promoting the rule of law requires interveners to keep many balls in the air at once, and doing so presents monumental challenges.

But the challenges for interveners do not end there. However one chooses to define the rule of law, the rule of law can neither be created nor sustained unless most people in a given society recognize its value and have a reasonable amount of faith in its efficacy.

Armed interventions levy enormous burdens, not least upon those with the capacity and will to mount them. When U.S. Secretary of State Colin Powell, referring to Iraq, opined to the president – “If we break it, sir, we will own it” – he was voicing a practical reality: interveners face far greater pressure today than in earlier eras to help stabilize and rebuild war-torn countries after major combat ends.

As a consequence, decisions to commit forces and resources to foreign interventions are among the most difficult ones that national leaderships face, especially in democratic countries. Governments must be convinced that contributing troops and other personnel serves their national interests and values, that the intervention has a reasonable prospect of success, that lesser strategies – for example, containment – cannot deliver the desired results, and in a larger sense that the benefits of the action outweigh its costs and risks. Recent experience in Iraq and elsewhere has also shown that states are far more likely to participate in an intervention – and contribute to post-conflict reconstruction – if they view the underlying intervention itself as legitimate.

The perceived legitimacy of an intervention will turn on many factors, including how urgent and compelling the circumstances are in the target state. Are terrorist groups using the territory to train operatives and launch attacks on other countries, with the support of the local regime? Are state actors or nonstate groups perpetrating horrific atrocities, in violation of fundamental norms of international law?

THE RULE OF LAW: “I KNOW IT WHEN I SEE IT”?

The late Potter Stewart, a justice on the U.S. Supreme Court, once famously remarked that there was no need for the court to define the term obscenity: when it came to obscenity, Stewart said, “I know it when I see it.” For many people, the phrase the rule of law often seems to have a similar quality.

In its colloquial sense, the phrase the rule of law implies a rather vague cluster of concepts: fairness, justice, predictability, equality under law. When we think of the rule of law, we may think of the phrase first made famous by Aristotle and often cited by the founders of the American republic: the rule of law involves a “government of laws, not men.” More concretely, we may think of the rule of law as having something to do with certain kinds of institutions and structures: well-functioning, respected courts, judicial review, fair and adequate legal codes, well-trained lawyers, and so on. To some extent, we may also equate the rule of law with respect for basic civil and political rights.

For the most part, even those of us who work on rule of law issues would be hard pressed to go beyond these intuitions and offer a precise definition of the rule of law. Yet like Justice Stewart, we are nonetheless pretty sure that we know it when we see it.

As we argued in earlier chapters, building the rule of law requires not only basic security and functioning institutions but also a strong degree of public support and confidence. People need to know that they can resolve disputes without resorting to violence, that the law will protect them from abusive government officials and predatory nonstate actors alike, and that their fundamental rights will be secure. But for people to have good reason for confidence in the rule of law as a cultural matter, we also emphasized the need for laws and law-making processes that enjoy legitimacy, for legal institutions that function fairly, and for a government that is prepared to be bound by law. Strengthening the rule of law, in short, is both a practical project of institution-building and a cultural project of shaping attitudes and commitments.

This chapter examines one piece of this mosaic: building fair, effective justice systems in the wake of military interventions. Beyond the immediate task of establishing security, longer-term efforts to strengthen a country's justice system – including its courts, police, and prisons – are a vital part of building the rule of law after intervention. In countries as diverse as Afghanistan, Iraq, East Timor, Kosovo, Bosnia, Haiti, and Sierra Leone, among others, interveners have worked with local leaders to recruit and train police, appoint and train judges, build and furnish courthouses, and improve often deplorable prison conditions.

Evaluating the effectiveness of rule of law assistance is complicated because rule of law promotion efforts are tied to the fate of the larger post-intervention reconstruction effort. Whether one defines rule of law assistance broadly, to encompass macro-political efforts such as forging the conflict settlement blueprint, or narrowly, to include only justice-sector-related assistance, failures in governance reforms, economic reconstruction, or security measures will undermine or defeat even well-designed rule of law assistance efforts.

But as noted, even when viewed in the most favorable light, rule of law assistance has frequently yielded only very modest results. For example, in a 2001 study, the U.S. General Accounting Office (GAO) reported on the limited impact of eight years of U.S. aid intended to assist the states of the former Soviet Union to develop sustainable rule of law institutions and traditions. The report concluded that progress was slow, that conditions in key states (Russia and the Ukraine) had deteriorated, and that the limited results elsewhere in the former Soviet Union “may not be sustainable in many cases.” The study correctly noted that “establishing the rule of law is a complex and long-term undertaking in the new independent states” and that impediments to success included “limited political consensus on the need to reform laws and institutions,” “a shortage of domestic resources,” and problems in the design and management of assistance programs by U.S. agencies.

Conditions in post-intervention states are typically far less hospitable to rule of law efforts than those in the former Soviet Union.

This is not an optimistic book. Throughout the preceding chapters, we have emphasized the enormous challenges associated with building the rule of law after military interventions. The very concept of the “rule of law” is elusive to begin with, and striving for the rule of law requires a constant juggling act on the part of interveners. It is little wonder that so many past efforts in this area have been so disappointing.

But this book is not entirely pessimistic, either. Although the challenges are daunting, we are convinced that modest successes are possible. If the international community has delivered less than was promised in Kosovo, Bosnia, Sierra Leone, East Timor, and Afghanistan, people in these societies are nonetheless probably better off than if there had been no outside interventions and no subsequent rule of law programs. In each case, serious problems remain: security is tenuous, economic development has been slow, serious rights abuses continue, political and legal institutions have struggled to achieve credibility and effectiveness, and many abuses have gone unpunished and uncompensated. Nonetheless, in each case, things could be far worse.

The moral, we think, is that it is possible for outside interventions to help foster the rule of law, but only if interveners fully understand the nature and magnitude of the task – and only if interveners understand that the role outsiders can play is crucial but limited.

It is hard to find anything good to say about imperialism. Fueled by greed and an easy assumption of racial and cultural superiority, the imperialism of the 19th-century European powers left in its wake embittered subject populations and despoiled landscapes. Traditional governance structures (some just, some unjust) were displaced by European implants, indigenous cultural practices suppressed, and natural resources ruthlessly exploited for the benefit of colonial elites and distant European overlords. Although imperialist ideologies and practices were frequently justified by reference to lofty ideals (the need to bring civilization, industry, or Christian values to more primitive nations, for instance), today there are few who would defend imperialism.

Until quite recently, most scholars were content to declare that the age of imperialism was over and good riddance to it. After World War II, strong international norms emerged favoring self-determination, democracy, and human rights and condemning wars of expansion and aggression. In the 1950s and 1960s, independence movements in colonized regions gained strength and moral credibility. As the possession of colonies increasingly became a political liability, most of the former imperial powers divested themselves of the trappings of empire. Some did so with almost unseemly haste, with a quick election, a ceremonial changing of the flag, and a series of bows and handshakes sufficing to transfer governmental power from foreign hands to those of the indigenous leaders.

In most of the cases studied in this book, interveners have felt compelled to press for some set of political and institutional arrangements that will enable them to leave the country in which they have intervened in better political condition than they found it. More specifically, they have sought to negotiate or impose procedures for creating order within the affected state, selecting a new government, and establishing the basic political and legal limits within which that government will operate. These new arrangements amount to nothing less than a blueprint for the political reconstruction of the affected country.

From a rule of law standpoint, the blueprints reflect the proposed macro-political and legal underpinnings of a new or transformed state; they represent an attempt to design a new political and legal order within which other elements of a rule of law system, such as police and courts, must operate. Blueprints lay out the critical steps interveners and their local partners expect to take to move a state from the shock of military intervention to self-government under the rule of law. Typically, they include provisions for maintaining security, forming an interim government, conducting elections to choose a new government, and in many cases, drafting the constitution under which that government will operate. In some cases, the blueprint may take the form of a more or less coherent political package.

As George Tanham, an international security and counterinsurgency expert, wrote of Vietnam, “[s]trange as it may seem, the military victory is the easiest part of the struggle. After this has been attained, the real challenge begins: the reestablishment of a secure environment opens a new opportunity for nation building.” Tanham's observation could just as easily be applied to the cases studied in this book. The terminology has evolved – the United States, in particular, now prefers “stability operations” to “nation building.” But Tanham's point still holds. Military intervention marks only the first, and usually the simplest, phase of the much larger and more complex task of restructuring the governing institutions of the affected state and encouraging the ascendance of actors and social norms capable of making those institutions successful.

As Tanham suggests, the reestablishment of a secure environment is “the sine qua non of post-conflict reconstruction.” Absent basic security, efforts to reform political institutions, adopt new laws, promote national reconciliation, and jump-start economic growth are destined to fail. In most cases, however, military victory does not, as Tanham seemed to assume, correlate directly with the establishment of the secure environment that in turn “opens a new opportunity for nation building.” In fact, most of the cases studied in this book do not entail a clear military victory. In many cases, interveners used force selectively against one or more parties to the conflict, but their primary goal was to compel a negotiated settlement rather than to achieve an outright military victory.

In July 1998, after years of preparatory work and five weeks of intensive negotiations, 120 states voted in Rome to approve a treaty intended to establish the first permanent International Criminal Court (ICC). Less than three years later, with a speed that surprised even the treaty's proponents, the treaty surpassed the sixty ratifications needed to bring it into force. The United States, joined by only six other states, voted against the treaty, and continues to search for ways to limit the new court's reach, even though almost all of the United States' closest allies have ratified the treaty or are moving towards ratification.

This outcome was not pre-ordained. The United States, under President Clinton, was predisposed to support efforts at creating an international criminal court. Such a court was consistent with the Clinton Administration's overall attitude towards human rights and accountability for human rights abuses, and with US support for the Yugoslavia and Rwanda war crimes tribunals. In 1994, the International Law Commission (ILC) produced a draft statute for the International Court, the culmination of years of work undertaken at the request of the United Nations General Assembly. This draft statute, which included a ‘gate-keeper’ role for the United Nations Security Council, helped trigger an official commitment from the Clinton Administration to support in principle the ICC project.

The ILC draft attracted numerous comments and criticisms from states and non-governmental organisations (NGOs) alike.