Judicial reconstruction and the rule of law : reassessing foreign military intervention [article]

Angeline Margaret Baker Lewis, University, The Australian National, University, The Australian National
2018
The support, comments and insights of many people have been a defining part of this research project over several years. I am indebted above all to Professor Don Rothwell, whose boundless experience and knowledge both necessarily broadened the paper and helped me keep it within reasonable bounds, and who gave generously of his time in reading many drafts. Colonel Steven Spelman, Lieutenant-Colonel Will Osbum and Lieutenant-Colonel Joseph Berger III were also kind enough to read drafts, and
more » ... d eliminate many errors. The comments of Hitoshi Nasu and Matthew Zagor as I approached completion helped me clarify the results of my research and led, I hope, to more refined conclusions. Allan Jones and Phil Hutson suggested new directions while I was forming my thoughts; Kevin and Jane Baker, and Robyn Phillips provided exceptional editorial assistance; and Terry Lewis endless patience. To these, and many others who have offered their support during this project, I am deeply appreciative. Any errors that remain are mine only. I am also grateful for, and honoured by, the trust of judicial staff at the Central Criminal Court of Iraq -Rusafa, and the many discussions with them which helped, directly and indirectly, to shape the focus of this project before I began it. As the security situation remains very serious for them and their identities are protected by law, I cannot thank them by name. However, the courage of many in pursuing reform and justice in this climate, at great risk to themselves and their families, is only to be admired. With them are the men and women of all ranks, services and nations involved in rule of law programs in Iraq who never went home. iii ABSTRACT The 'rule of law' is increasingly held out as a panacea to domestic and international ills, but it is a concept which is severely tested when foreign military intervention attempts to create or reconstruct it in national communities. At a theoretical level, the rule of law has emerged from the traditional division between substantive and formal views, which debate the necessary involvement of values, into a practitioner-centric 'blue-print analysis,' in which a universal concept of the rule of law is said to encompass a checklist of human rightsbased, recognisable court and democratic legislative institutions. This blueprint seeks the ideal of the 'fair trial' as the mission of interveners, disregarding the extant recognition in international law that this human right is necessarily derogable in states of national emergency. When rule of law theories are deconstructed, no universal agreement between cultures can be detected at a conceptual level. However, the adoption of the rightsbased institutionalist model for the international rule of law results in international pressure on its constituent states to develop consistent rule of law practice, in order to maintain coherence at the higher level. This, however, precludes the formation of domestic rules of law, when the rule of law is properly understood as a relationship in which the community chooses law as its means of self-ordering. This fundamental tension is behind the underlying push for military intervention to restore or create the rule of law, and the failure of legitimacy which results. The content of the laws of intervention, applying particularly to occupation under international humanitarian law, are based on an altogether different approach. Both occupation law and intervention authorised under the United Nations Security Council's coercive power to restore international peace and security essentially confer powers relating to order and security. Occupation law specifically precludes intervention in the domestic judicial system which would have a permanent effect or cause essential change in the indigenous structure. It is to be compared with recent iv
doi:10.25911/5d63bd692bb6b fatcat:p7poqunqkbezzd4vcszlmqhyma