2009 Samuel Dash Conference on Human Rights: Rule of Law in the Context of Military Interventions
As our nation is in the midst of an active conflict in the Middle East, the conversations prompted by this conference are critical, and the necessity to evaluate the importance of justice and rule of law during military interventions will only increase.
In his opening remarks, Thomas Nachbar, decorated veteran and professor at the University of Virginia School of Law, described the two universal truths within the “rule of law.” The first is that bringing about the kind of changes represented by the term is very challenging, and the second is that any approach to the rule of law must be a coordinated one. Unfortunately, there are many inhibitors to achieving the coordination required for progress within the rule of law, especially in relation to military interventions. “Some of the disagreement is explicit and represents different theories and ideas about how things like the security environment affect your ability to engage in capacity building projects. Some, for instance, might view rule of law as a means to security while others might view security as a means to rule of law.” Both explicit and implicit disagreements prevent the much-needed progress from being made and pose many questions that require answers in order for steps to be taken. “Like many rule of law programs themselves, the ambitions underlying these plans remain largely unrealized. Moreover, it’s yet to be seen what such large-scale changes in how we approach the problem will have on the problem itself.”
This year’s Samuel Dash Conference on Human Rights was a collaboration between the Georgetown Law Human Rights Institute, the U.S. Army Judge Advocate General’s Legal Center, and the University of Virginia School of Law. The conference features experts and advocates for human rights both in the United States and around the world. These individuals represent a broad community of thinkers, researchers, writers, government actors, and community activists, and they have come together to forge a clearer understanding of the roles of human rights and the rule of law in the context of military inventions.
Through the three panel discussions and two keynote speeches, our speakers sought to answer critical questions regarding the relationship between military interventions and the rule of law.
Panel I – Military Involvement in Rule of Law Activities: Boots on the Ground
“The whole idea of rule of law and having society governed by law is probably, after security, the most important thing that you need.” – John Mantini
This panel discusses the military operations taking place on the ground and how the organizations engaged in those operations work together in order to execute them. Colonel David Paschal began by discussing his work in Iraq as the commander of the 1st Brigade Combat Team. In addition to the 3,800 soldiers under his command, Col. Paschal fostered a partnership with the Iraqi government that required investigations into the deeper societal issues that impacted security. “We had to address the political, social, and economic means that were fueling the insurgency. What makes a young man or a young woman willing to strap on a bomb and walk into a crowded marketplace and blow themselves up?” Speaking about the relationship between the effectiveness of the military in fostering stability within rule of law systems and the culture of the nation, Paschal stated, “The military can only provide the security for the other elements of national power to affect those areas.”
When describing the plan to streamline rule of law systems in Iraq, Phillip Carter stated that “it was so successful because it wasn’t an American effort, it was an Iraqi effort. We did what we could to ask questions, we engaged our counterparts directly behind closed doors, but ultimately what we wanted to see was them taking the steps.” As a civilian lawyer who worked with the military in Iraq, Phillip Carter emphasized the importance of civilians – both from the United States and the host nation – in the military efforts to successfully improving conditions. Speaking about the importance of organization and planning in rule of law systems, John Mantini said, “Unless you have a good plan in place to direct those forces and direct your efforts, what you end up having is people doing a lot of different things in an uncoordinated way.” William Spencer, an attorney who works for an NGO that is committed to protecting human rights and the rule of law, identified eight different subsections that fall under the rule of law umbrella. “The idea of rule of law is not just law enforcement and rule of law is not just human rights. All of these are all pieces of a bigger holistic process that we need to recognize.”
Major Marie Anderson (moderator), Associate Professor, International and Operational Law, Judge Advocate General’s Legal Center and School
Phillip Carter, Associate, McKenna Long & Aldridge
John Mantini, Millennium Challenge Cooperation (substitute panelist for Phil Lynch, the rule of law coordinator in Iraq)
Col. David Paschal, Commander, 1st Brigade Combat Team, 10th Mountain Division
William Spencer, Executive Director, Institute for International Law and Human Rights
Watch the panel and subsequent Q&A session on some of the military activities taking place on the ground and how they impact the rule of law below.
Lunch Address –Tom Ricks
Introduced by: Rosa Brooks, Director of Georgetown Law Human Rights Institute
“Tom has been a journalist for many years, there is hardly a combat zone or trouble spot in the world that Tom has not been to and reported from. Tom has a lot to tell us about, not only what has happened in the past, but perhaps what will happen in the future.” — Rosa Brooks
As the special military correspondent for the Washington Post, a senior fellow at the Center for New American Security, a published author, and a contributing editor to Foreign Policy magazine, Tom Ricks has a wealth of knowledge and experience surrounding military operations and security. In his keynote address, Ricks outlines the three misconceptions that Americans have about the war in Iraq. “First is how difficult and how different the surge was from previous policy. Second is that the surge failed, and third is that the war is far from over.”
Ricks recounts some of the stories that he wrote about in his book, explaining how achieving success in Iraq required regaining the trust of the Iraqi people by defending them and their territory. Through collaboration with local and nonlocal actors, the American military became more effective, and progress was made. “There was a new humility, a new willingness to listen, a new understanding that the American way is not the only way, and probably is not even the best way. That the only solutions are going to be local solutions.”
Watch Tom Ricks, Special Military Correspondent for the Washington Post and author of Fiasco: The American Military Adventure in Iraq and The Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006-2008, as he shares his knowledge of the role of the American military in Iraq and the subsequent Q&A session below.
Panel II – The Institutional Approach to Rule of Law: Whose Job is it Anyway?
“Here’s where we are today. We’ve relearned a lot of past lessons, spent a lot of money and blood, and we’ve learned some new lessons. We’ve learned that the principle of legitimacy impacts every aspect of stability operations from every conceivable perspective, and this is directly linked to the rule of law.” — Brig. Gen. Edward Cardon
This panel addresses questions about how different institutions bring different approaches to rule of law and how they can work best together in order to engage in these operations. With backgrounds in the military, government, consulting, and other fields, the panelists bring a wealth of knowledge to the discussion regarding how we should understand the rule of law and what the goals and objectives of building a post-conflict rule of law should be.
Chris Homan spoke to the timeliness of this discussion and the need for building rule of law institutions. “We have two huge military engagements right now – one in Iraq, one in Afghanistan – and the need for building the basic democratic institutions in these countries couldn’t be larger.” Homan emphasized that the work to expand democracy and increase civil and political is a long-term endeavor that requires patience and perseverance. Rachel Klein posed the comparison between the ideal and the reality when approaching rule of law and addressed the role of the military in achieving positive change. According to Klein, the core of rule of law can be seen from the perspective of the Ancient Greeks, who used the ends to determine the means. “This approach looks at things like law and order, equality before the law, human rights, a government that obeys the law, and the settlement of disputes” to determine what rule of law institutions are necessary in a society.
Looking to the future and analyzing the flaws that prohibit the American military from achieving their goals, Johanna Mendelson Forman identified internal issues. When she thinks “about the pledge that President Obama made to improve civil military balance and US operations and to put a more civilian face on the development in government, governance efforts are truly being hampered… by the problems in our own system. The institutional disharmony and the problems of the way we are organized as a government still have not been remedied.” Brigadier General Edward Cardon addressed the central question: “whose job is it anyway?” In response, Cardon stated that “everyone has a role to play. There’s a science to this that matters. Security enables civilian capacity. If you take away security, and the security situation is bad, then there is no civilian capacity to put forth. The art of it matters.”
Jane Stromseth (moderator), Professor of Law, Georgetown Law
Brig. Gen. Edward Cardon, Deputy Commander, U.S. Army Combined Arms Center (Leadership Development and Education) and Deputy Commandant, U.S. Army Command and General Staff College
Chris Homan, Foreign Policy Advisor for Senator Richard Durbin
Rachel Kleinfeld, Co-Founder and Executive Director, Truman National Security Project
Johanna Mendelson Forman, Senior Associate, Americas Program, Center for Strategic and International Studies
Watch the panel on the institutional approach to the rule of law and the subsequent Q&A session below.
Panel III – Military Involvement in the Rule of Law: Surveying the Risks and Reasons
“What is the rule of law? As I began to show people, I talked to them about three things: the law is fair, no one is above the law, and the rule of law is more powerful than the rule of the gun.” — David Crane
In his introduction of the panel, moderator Colonel Mark Martins stated that this panel discusses rule of law at a more abstract and philosophical level. The conversation addressed dynamics such as “why the military has tended to get into modern rule of law efforts at all, the risks of military involvement for instance to the development of rule of law itself and to underlying civil military relations, what risks government involvement poses to non-governmental efforts and to rule of law govern efforts writ large, and whether there are new and different approaches that might better serve U.S. national security interests.”
The aftermath of military interventions in foreign conflicts poses a myriad of challenges, especially regarding the stability of the foreign state. Professor Aaron Belkin noted that few hands were raised when he asked the audience to raise their hands if they believe “we’re going to leave a stable democracy in Iraq.” In addressing the reasons why rule of law implementation can sometimes fail, Belkin emphasized the importance of factoring in the “coup risk” of a nation to determine whether rule of law will be maintained once it is established. Professor David Crane spoke about the threats to our future and the impact it will have on rule of law. “Conflicts and wars are becoming increasingly uncivilized. I would say that we’re moving away from the laws of armed conflict. We [the United States] may follow the laws of armed conflict, but there are not many others that do.” The panelists also spoke about strategies and approaches for thinking about the problems within the relationship between the rule of law and military interventions, and addressed the complicated dynamic, including the risks of military involvement in rule of law efforts. New approaches to rule of law were delved into, and panelists shared how these novel ideas can “bring this community of interest together in an effective way.”
Deputy Judge Advocate General of the United States Air Force Charles Dunlap provided the answer to a critical question: why does the military take the lead in building the rule of law? In response, Major General Dunlap stated, “We in uniform know that it should be civilians but… from a military perspective, in conflicts in the 21st century, you cannot leave until the rule of law has been established. Additionally, the American people want us to do it. There is a thirst in American society to see things in government work.” There are several factors that must be considered when the American military decides to intervene and establish rule of law in a foreign land. Professor Crane proposed a question that he believes should be asked before military interventions take place. “Is the justice and rule of law that we seek the same justice and rule of law that they want?
Col. Mark Martins (moderator), Chief, International and Operational Law Division, Office of the Judge Advocate General, U.S. Army
Aaron Belkin, Director, Palm Center, Associate Professor of Political Science, University of California, Santa Barbara
David Crane, Professor, Syracuse University College of Law
Major General Charles Dunlap, Deputy Judge Advocate General, Headquarters U.S. Air Force
William Stuebner, Director, Civil Military Operations, The Louis Berger Group
Watch the panel on the risks of and reasons for intervening in foreign conflicts and future of the military interventions in rule of law and the subsequent Q&A session below.
Keynote Address – Jeh Johnson, General Counsel, Department of Defense
“When we go into a sovereign nation and push out its ruling government, we assume a moral obligation to the people there who, as a result of our actions, may find themselves with no army, no police, no running water or electricity.” — Jeh Johnson
As the General Counsel at the Department of Defense, Jeh Johnson provides the senior advice to the Secretary of Defense, to the other senior officials in the department, and to the interagency community on the full range of legal issues that affect and afflict the Department of Defense. It is among his leading responsibilities to restore a measure of confidence and trust in the military justice system and to take the actions to restore the appreciation for the rule of law.
In his address, Johnson discussed the responsibility that the American government and military has in maintaining and upholding rule of law when intervening in other nations, and the responsibility to mend any societal damage that takes place as a result. Referencing former Secretary of State Colin Powell’s reminder to former President Bush about the “Pottery Barn Rule” – “you break it, you own it” – Johnson noted that the same ideology is also found in the Hague Conventions and emphasized the United States should uphold that tenet. Analyzing the crises in Iraq and Afghanistan, Johnson outlined the challenges being faced by the people of those nations and the role that the American government and military ought to play in restoring the rule of law.
Watch Department of Defense General Counsel Jeh Johnson’s poignant keynote address and the subsequent Q&A session below.