TCS Daily

Who Should Establish Rule of Law in Iraq?

By Ilya Shapiro - August 22, 2007 12:00 AM

BAGHDAD—Last week I argued here that establishing Rule of Law in Iraq is both possible and realistic, but that this process must take into account local customs and achieve both popular legitimacy and elite buy-in to work. Now I turn to the mechanics of implementing Rule of Law (ROL): Who should do it? Who should lead? Does the United States have the capacity for this? What about longer-term solutions beyond the particularities of Iraq?

1. The Case for Civilian Leadership

ROL, like agriculture, industry, sewage, and all the other aspects of modern life are, by definition, civilian functions. Just like civil engineers build bridges and power plants, interfacing with their counterparts in the host country, it is judges, police trainers, corrections experts, and the like who should be standing up courts, police, and prisons—the three legs of the ROL stool.

After all, while the modern military does have lawyers (JAGs), they specialize, understandably, in military law: rules of engagement, operational law, international agreements, violations of the Uniform Military Code of Justice (UMCJ). Not to mention the non-legal officers who are inevitably involved in rule of law efforts through the chain of command.

Moreover, civilian and military officials have different "feedback horizons." ROL is an especially long-term endeavor, not susceptible to measurement against monthly "benchmarks" that can be put into neat PowerPoint slides for presentation to superior officers. It is useful to know, sure, how many trials take place, how many police go through training, how much of a new prison's capacity remains, etc. But those numbers can be misleading indicators of the strength of a legal regime and its legitimacy in the eyes of the people to whom it is responsible.

Rather than worrying about achieving certain numeric targets by a specific time—when a unit rotates out, say—civilian liaisons can build relationships and provide advice not tied to set timetables (as much, in theory). And they can do it without having to keep an eye on security functions that may at times be perceived to interfere with ROL development. The military is a necessary component of the ROL mission—advising on areas in which the ROL mission intersects with counterinsurgency operations, for example—but there can only be one lead actor, civilians (meaning, specifically, State and Justice Department lawyers and related officials).

2. The Case for Military Leadership

Yet in a place like Iraq we're not merely talking about developing ROL in a poor, underdeveloped area. The challenges to normalizing a system of criminal justice (to use the most visible aspect of ROL) multiply exponentially when hostile forces actively use violence to thwart the coalescence of legitimate political authority.

To use a crude analogy, this is not ROL development in New Orleans, which faces plenty of the same issues we face here (incompetence, corruption, weak institutions, low political culture). When there's an active insurgency, it's hard to remove or even scale back the military from the ROL equation.

Indeed, it is difficult to limit the military role to providing security and interfacing with counterparts in the host nation's security forces, which would essentially take ROL out of the bailiwick of the Office of the Staff Judge Advocate (OSJA). Oftentimes there aren't even enough civilians to send into the field to work ROL issues, either because it is too dangerous or because they do not adequately understand the counterinsurgency issues at play. And civilians cannot marshal the same level of resources or field organization.

Counterinsurgency goes beyond security—it's not a matter of having soldiers guard courthouses or train and equip a judge's personal security detail (PSD)—and cannot be divorced from any civilian efforts. This is why the Army has a Corps of Engineers (recall the bridge/power plant), a Surgeon General, Military Police, and many other trades and professions that can be harnessed to run a self-sustaining city (which is what a military base is, after all).

Only the military combines this mix of talent in one organization under a unified chain of command, the ability to recruit talented individuals, an effective disciplinary system, unrivaled logistical capability, and a unique doctrine development capacity. The Defense Department is not perfect—its bureaucracy is the stuff of legend—but it arguably functions better at the execution of a huge range of operations than any other organization in government.

Forget New Orleans; Iraq is not even post-war Germany or Japan, not purely a post-conflict reconstruction job. If we are going to do "nation building," as we are now and always have (see, e.g., Max Boot's The Savage Wars of Peace and Niall Ferguson's Colossus), it is the military who must lead the joint ROL effort.

3. The Third Way

Yet, again, despite all the talented people in the military—and I can attest to this exceptionalism first-hand—OSJA was not designed to play a leadership role in ROL, even if it has been thrust into it by the particular demands of this campaign. And expanding the military may work through sheer brute force—throw enough resources at a problem and eventually something will stick—but it doesn't seem to be the optimal solution.

Nor is it necessarily what the military ought to be doing, and indeed civilians have the ROL lead per the Joint Campaign Plan. The problem in Iraq is the lack of a mechanism to draw enough civilians to come here long enough to make a campaign-shifting type of difference. There are excellent civilian personnel here, and where they can lead, the military has followed. But for a host of reasons, the 500+ military legal personnel (JAGs and paralegals) charged with direct support to commanders wind up plugged into holes where civilians otherwise would be.

In Iraq, Provincial Reconstructions Teams (PRTs, which have become joint military-civilian), separate enclaves with heavy U.S. support (like the Rusafa Rule of Law Complex), and a realignment of interagency responsibilities are all part of the solution, but practical and logistical issues remain—not least in staffing. We need something more systematic.

What we need is the legal authority to deploy overseas civilians with the requisite expertise in ROL and otherwise. Britain's India Civil Service (ICS) is a good model, and two bills were proposed in the last Congress to create just that sort of "Civilian Reserve Corps" (CRC, one of the names bandied about).

A CRC would make the civilian vs. military debate academic; the responsibility for implementing ROL would fall to it. Stay tuned for more on this concept in my next dispatch.

Ilya Shapiro, the incoming Senior Fellow in Constitutional Studies at the Cato Institute, is currently a Special Assistant/Advisor to the Multi-National Force-Iraq's (MNFI) Law and Order Task Force (LAOTF). He writes the "Dispatches from Purple America" column for TCS and a blog of the same name. The opinions expressed here are his alone and do not necessarily reflect the views or policy of any institution with which he is affiliated.



Direct American rule
This should be a popular move-- make them a United States colony... or a military satrapy.

And we did such a great job under Paul Bremer's CPA! I'm surprised no one but our Mr Shapiro has thought of this.

Let's recall that back when the Brits were carrying the Iraqi hot potato they were a hundred times better at ruling an empire than we will ever be. And they had to drop it.

Again, Charles Graner&Lyndie England
Again, why should Iraqis still like to take over the "American Way of Life" or "Rule of Law"?

This war is lost.

I would say the war was easily won but the occupation has not fared as well. There is a difference and occupations always fail if they are not well thought out and scaled back in a proper fashion.

It's that "hearts and minds" thing again
Let's not lay the blame on all occupations, which must invariably fail. We didn't do so badly in Japan and Germany. Let's see what we did right then and what we're doing wrong now.

There is no faction in Iraq society that sees our rule as being desirable, other than the Kurds. Among the rest, virtually all complain that things have only gotten worse since we've been in charge. And Saddam should have been an easy act to follow.

The fact is that current leadership has no more interest in the welfare of the Iraqi people than they took in the welfare of the people of New Orleans. This has been abundantly, abundantly illustrated. And in both cases, even if the desire to be of service were there, the ability to devise a coherent and effective plan would not.

So Iraqis will languish under poor leadership until the day they summon the strength to rid themselves of their various foreign occupiers and decide how they want to govern themselves. More years of a largely irrelevant American presence will not be that helpful to them.

you actually want to win? - - -
To take lessons from the Raj in India and other British colonial experience is an excellent approach. The Brits successfully ruled a good share of the world for a couple of centuries from a smallish island in the North Sea. They used a moderately sized but relatively technically advanced, civilian controlled, disciplined military. Initially, their prospective colonies, naturally, had bloody wars going on between local competing tribes. Their (subconcious?) "secret" was to ally with one side, possibly the weaker of the top two, and bring it to power, then support its rule in return for its support of British ROL and other civil aims, at a very economical cost in blood and treasure.

Fast-fwd to the present; the Iraq 'war' (which is actually a battle) is going better since we wisely switched our alliance from the Iraqi Shia, who are clients of Iran, to the Sunnis. We are now tacitly allied with the Saudis, Egyptians and other Sunni states against Iran's ruling Shia mullahs, which will redound to our benefit in the greater middle east regional and international war.

We can win this battle and the associated war rather easily, compared to our efforts in other major wars. Our casualties have been low, we lost more in one civil war battle, when our population was a fraction of what is now, than we have in Iraq, and it is easily affordable economically. The pay-off for our grand children and western civilization will be immense, dwarfing the cost of the effort.

Gosh!!! Sounds so simple. Wonder why it's not working
I mean, the way you describe it is a slam dunk. So why doesn't Baghdad have reliable power 4 years after we won the war?

re; Indian civil service
To those guys who are recommending how the brits did it in India should be aware that there were some problems there too. In fact, after the mutiny in 1857, the East India company lost control, and an indian civil service dept was established. One of the main things they did in the reorginizationd was to put more real englishmen in charge of the military, the ratio of english/native. And don't forget that that even before the reorginization, the brits, those very few guys with the girly looking shorts, STILL managed to win the mutiny and take control again! And they didn't even have to kill women and children. But this was a time tho when the british didn't have to fight with one arm tied behind their backs. There were no more insurextions till the brits finally gave up the place after WW11. Then re Iraq, the brits also successfully passivied that place too, till they voluntarily gave up the place.

It IS working, you blustering dolt,
but that ADD that you possess prevented you from reading the commentary you are responding to.

The U.S. saw that it was necessary to SWITCH alliances, just as we switched some of our military strategies earlier in 2007. Progress is now being decisively made, even it does take oh-so-much-time in the ADD-riddled minds of the average Americans whose psyches are shaped by microwave dinners and instant coffee.

Your goofy question about reliable power in Baghdad shows more of your ADD. You mean there was reliable power before? Do a little research, you professional whiner.

Baghdad was pummeled with heavy weaponry when Hussein was there. Now the number one priority has been securing it. Number two priority, for now, is rebuilding it. As we rebuild it, it will be more than restored--it will be re-made, so that THIS time, when the work is completed, it WILL have the reliable power that it did not have before.

You should really try to get more of an argument than "you blustering dolt"
That's the sum total of all you have to say - calling me names. You have no backup for any of the assertions you're making. All you do is keep repeating "progress is being made."

This is egregious: "Your goofy question about reliable power in Baghdad shows more of your ADD. You mean there was reliable power before? Do a little research, you professional whiner.

And then you blame the problem on this: "Baghdad was pummeled with heavy weaponry when Hussein was there.

But that's not what caused the problem. Looting caused the problem after we took over.

If you had done a little research, you'd have quickly come up with this from the New York Times:

BAGHDAD, Aug. 22 — Armed groups increasingly control the antiquated switching stations that channel electricity around Iraq, the electricity minister said Wednesday.

That is dividing the national grid into fiefs that, he said, often refuse to share electricity generated locally with Baghdad and other power-starved areas in the center of Iraq.

The development adds to existing electricity problems in Baghdad, which has been struggling to provide power for more than a few hours a day because insurgents regularly blow up the towers that carry power lines into the city.

The government lost the ability to control the grid centrally after the American-led invasion in 2003, when looters destroyed electrical dispatch centers, the minister, Karim Wahid, said in a news briefing attended also by United States military officials.

Ok, so we seem to maybe have a problem. So what's the response: To stop giving out information on the problem. This is from the LA Times.

"The (State) department now reports on the electricity generated nationwide, a measurement that does not indicate how much power Iraqis in Baghdad or elsewhere actually receive.'

The change, a State Department spokesman said, reflects a technical decision by reconstruction officials in Baghdad who are scaling back efforts to estimate electricity consumption as they wind down U.S. involvement in rebuilding Iraq's power grid.

Department officials said the new approach was more accurate than the previous estimates, which they said had been very rough and had failed to reflect wide variations across Baghdad and the country.

"Nothing is being hidden. There is no ulterior motive," said David Foley, the department's Middle East spokesman. "We are continuing to provide detailed information and have been completely transparent."

The State Department's new method shows that the national electricity supply is 4% lower than a year ago, according to the July 11 report."

You might undeline one line in the above we are now "wind[ing[ down U.S. involvement in rebuilding Iraq's power grid." The Iraqis aren't picking up the ball.

So when you say this:
"As we rebuild it, it will be more than restored--it will be re-made, so that THIS time, when the work is completed, it WILL have the reliable power that it did not have before. "

We are just about finished with our effort to rebuld it. Big progress?

You better come up with some more of your really heavy duty cutting insults. You sure as hell have no facts.

Iraq Rule of Law
A problem here is that most may think of "Rule of Law" as conforming to the legal systems evolved in "Western" social orders.

A major problem has been created in the attempt to create systems of governance fron the top down over a social order that is based on a different structure; that is, family, clan, tribal, inter-tribal, religious sectarian and lastly, territorial.

A "Rule of Law" has existed within the families, the clans, and the tribes for many centuries. It has been much more limited to "Elites" at the inter-tribal level, but has had some utility at the level of issues amongst the tribal sheiks for themselves and for their tribal interests.

At the religious sectarian level, a series of conclaves will soon begin to re-establish the historic role of the "Jurists" in Islamic traditions. After that the territorial extensions, with some conflicts, of course, will take palce.

A "Rule of Law" to be truly "Law," cannot be laid down over such a grouping of peoples as a construct, not by those within the social order nor by those from without.
If it is to be Law, it must come about as a series of spontaneuos responses of those highly varied groups of peoples, in the words of Adam Ferguson, it must be "stumbled upon."

R. Richard Schweitzer

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