Small Wars Journal

Rule of Law Wins in the Overlap of Law and Culture

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Rule of Law Wins in the Overlap of Law and Culture

 

T. Nelson Collier

 

A case study of the occupation of Iraq reveals that coalition forces failed to meet the UN’s end state in the rule of law resolution.  And, of course, U.S. forces are back in Iraq.  This is due in no small part to the fact that coalition forces failed to set the conditions for a rule of law culture.  The case of postwar Iraq teaches that success with respect to rule of law requires the learning of local law and cultural norms.  This lesson applies even more profoundly to the Sahel.

 

Several months after the Niger ambush,[1] the President of the United States issued the 2017 National Security Strategy (NSS).  The 2017 NSS strategy toward Africa reiterates the rule of law as a priority.  Rule of law is integral to the military’s mission (Part I), but rule of law requires an understanding of operational law, particularly local law and cultural norms (Part II). 

 

Part I - Defense Doctrine in Trace of the Rule of Law Resolution

 

Nasiriyah is significant to Marines.[2]  The bloody battle[3] there between 2d MEB’s Task Force Tarawa and the Iraqi Fedayeen marred the start of the Iraq war.  But Nasiriyah is significant for at least one other reason.  It represents the first of two meetings held with Iraqi representatives, the first steps toward setting up a new government after Hussein’s ouster.[4]  Of note, the meeting at Nasiriyah led to the Nasiriyah statement of 15 April 2003, which established as a principal imperative that “the rule of law must be paramount.”[5]

 

Within the month of the President’s Mission Accomplished speech, the UN Security Council passed Resolution 1483, recognizing the United States and Britain as occupying powers.  The resolution acknowledged the Nasiriyah statement, “Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens.”  The rule of law resolution lent legitimacy to the occupation.

 

Events sequenced much faster on the ground.  Remember Marine Colonel Christopher Conlin’s anecdote, that, “In a blinding flash, we had become the local government.”  But, on the whole, there had been little planning at the topmost echelons,[6] and so no plan.[7]  With no plan, occupying forces were forced to improvise.  Most efforts fell short.  By 2004, “What began as Phase IV warfare, or transition, ha[d] become—in Iraq particularly—a painful reminder that postwar duties, sometimes called nation building, are not optional, but rather are integral to the military’s mission to fight and win wars.”[8]

 

In 2005, considering Iraq’s “painful reminder,” Secretary of Defense Donald Rumsfeld sent a terse “snowflake” to the Chairman of the Joint Chiefs of Staff: “We need the force structure necessary to do Stability Ops.”[9]  A DoD Directive came soon after that put stability operations on par with combat operations.  Rumsfeld’s new structure swept in with the President’s troop surge in 2007.

 

Defense doctrine kept pace.  In 2008, the Army entrenched the new imperatives in its FM 3-07.  The Joint Staff did the same in 2011 with its Joint Publication 3-07.  The Marine Corps Warfighting Publication (MCWP) 3-03 on Stability Operations came in 2016.

 

In joint doctrine, stability activities’ five functions include rule of law.  The MCWP carries forward the five functions, speaking of stability activities as “complementary civil-military efforts aim to strengthen legitimate governance, restore or maintain the rule of law, support economic and infrastructure development, and foster a sense of national unity that enable the host government to assume responsibility for civil administration.”  The Army’s FM 3-07 has more or less the same wording.  And not to be overlooked is the fact that, “[i]deally, these are addressed before, rather than after, conflict.”

 

As it stands, each doctrinal source is an acknowledgment that building the rule of law is at once a military responsibility, one of profound and first-order strategic importance.  Not only that, but establishing the rule of law is also of operational and tactical importance.  After all, “rule of law is the West’s alternative to jihadist terrorism.”[10]  And what must be borne in mind is that rule of law depends on local law and culture.

 

Two task-sets emerged from the end-state as reflected in the rule of law resolution.  The first: “Senior officials realized the U.S. exit strategy was dependent on building a capable Iraqi Army that could take over security operations after the U.S. departed.”[11]  For the second of the two task-sets, a note is appropriate on the episode of Tal Afar.  To be sure, “[s]ometimes the military’s ability to improvise without guidance produces brilliant results,” as diplomat and former CAP officer Ronald Neumann[12] has noted, and “H.R. McMaster’s earlier work in the Iraqi city of Tal Afar[13] is a well-known example.”[14]  As one scholar has noted, “Tal Afar illustrated that effective [counterinsurgency] requires unity of effort between the military and police and that security must be connected to courts and prisons as well.”[15]  Yet, despite the urgent necessity, “little energy was devoted to reconstituting a new Iraqi army and police force, thereby ensuring a security vacuum for years to come.”[16]

 

The surge did little to reverse the worsening conditions on the ground.  In the end, coalition forces failed to meet the rule of law end state.  After the retrograde of the last U.S. troops in 2011, the coalition was left with little to show for what turned out to be an eight-year occupation.  Problems persist in OIR.  And this is true not least because coalition forces have still failed to understand Iraqi law and culture.  Rule of law demands an understanding of operational law—law of war and local law—and culture.

 

According to the MCWP, Marine Corps forces support the rule of law by “providing training and support to law enforcement and judicial personnel.”  This task-set falls under Foreign Internal Defense (FID).  But FID is easier said than done.  Cultural differences complicate the difficulties.[17]  And what is true for the United States[18] is true for partner nations: rule of law depends on cultural values and norms.[19]

 

Part II - Rule of Law in the Overlap of Operational Law and Culture

 

By 2011, McMaster had come to develop several insights.  Top among them are two that are of lasting consequence.  One, “[t]here is so much we have taken on in terms of assistance, training host nation security forces, rule of law missions, detention operations, and working within an indigenous law system that relies upon legal expertise.” [20]  Two, “[c]ultural and historical training and understanding is also extremely important.”  Each point is important enough to warrant attention.  The points become more important to the extent that they overlap.  And, they do overlap.  No wonder: “law is embedded in the cultural attitudes of the people who have created it.”[21]  Operational law reveals the overlap.

 

The 2015 DoD Law of War Manual defines operational law as “that body of domestic, foreign, and international law that specifically pertains to the activities of military forces across the entire conflict spectrum.”  It may go without saying that U.S. forces are bound by domestic and international law.  But a proper command of operational law also requires an understanding of foreign law, including local law and cultural norms.  In the words of theorist and Brigadier General Huba Wass de Czega:

 

There was no doubt within the coalition about who had won the First Gulf War. However, viewed through the lens of Iraqi culture and Islamic law, Saddam Hussein’s forces had won a great strategic success in spite of their tactical losses when Allah intervened to prevent the invasion of Mesopotamia and the overthrow of the regime… In the current protracted struggle against committed Islamic fundamentalist groups, physical actions without a superbly well-informed and highly tuned psychological dimension will fail.[22]

 

Marine Special Operations Officer Lieutenant Colonel Russell Worth Parker emphasized this point, offering a note in 2017 on just what such a psychological dimension requires: “philosophical legitimacy has become a strategic factor, and capitalizing on it requires understanding moral and legal justifications for warfare in both Western and Islamic thought.”[23]

 

Building rule of law cultures[24] also demands an understanding of local law and norms.   Consider first that the former counselor for Under Secretary of Defense for Policy, Rosa Brooks, co-wrote an important book on this topic.  In the book, Brooks and her co-authors stressed the importance of developing some understanding of Iraqi law.[25]  Learning local law and custom is important to administering postwar rule of law programs.  And far from being a truism exclusive to matters of postwar governance, it also applies to rule of law programs in general.

 

Of note, the MCWP on stability activities includes a definition of the rule of law:

 

The rule of law refers to a principle of governance in which all persons, institutions, and entities (public and private, including the State) are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and are consistent with international human rights norms and standards.

 

The strategist finds the same definition in FM 3-07.  DoD, the Department of State, and the U.S. Agency for International Development all adopted this definition in its rule of law “guidelines” of 2009.[26]  So it is appropriate to consider it a DoD and interagency definition.  But this definition focuses almost exclusively on the role of the State.  Restoring and maintaining the rule of law requires attention to the choices of the people.  Each requires attention to culture.

 

Consider that the interagency definition of the rule of law carries forward, word-for-word, the formulation that UN Secretary-General Kofi Annan offered in 2004.[27]  And it matters.  An appreciation of the origin of the DoD’s rule of law concept helps the strategist determine its import.  With respect to law and culture, examine Annan’s remarks on the “mix of expertise” that the rule of law requires, including “an understanding of the host country’s legal system (inter alia, common law, civil law, Islamic law), familiarity with the host-country culture, an approach that is inclusive of local counterparts, an ability to work in the language of the host country and familiarity with a variety of legal areas.” 

 

Annan himself has characterized this definition as State-centric.[28]  In contrast, consider an alternative definition that characterizes the rule of law as more people-centric.  Brooks and her co-authors define rule of law as “a state of affairs in which the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral, and universally applicable rules, and in a manner that respects fundamental human rights norms.”[29]

 

Most of the same elements are there, but a closer look reveals that this definition is focused more on peoples’ actions and choices.  Now, remember that Operational Culture defines culture as “The shared world view and social structures of a group of people that influence a person’s and a group’s actions and choices.”  Here operational law and culture overlap.  Rule of law requires the right alignment of choices, choices that support the tenets of rule of law culture.

 

The occupation of Iraq offers another lesson learned on the strategic utility of SOF: “in both the U.S. Army and the Marine Corps the consensus appears to be that flexible units with capabilities to conduct the full spectrum of military operations, including post-conflict operations, rather than designated reconstruction units, are the appropriate response to the increased priority of stability operations.”[30]  What is more, Section 167 of Title 10—which first established SOCOM—lists FID as one among SOCOM’s functions.  In fact, “[SOCOM] is the only combatant command with FID as a legislatively mandated core task.”[31]  So DoD’s rule of law role is most appropriate for SOF.

 

After the Niger ambush, the national security staff can expect that Congress and the electorate will pay more attention to the Sahel.  But “[l]ack of cultural awareness has also plagued programming” in AFRICOM.[32]  There is much to take from the French.  French forces have been conducting stability activities in northern Africa since (the beginning of) the end of the colonial era in the ‘60s.[33]  According to French Army Colonel Henri Bore “cultural adjustments were vital to mission accomplishment.”[34]  Not only this, but the “psychological dimension” was incorporated into tactical tasks and considered “integral” to operations.

 

Lieutenant Colonel Parker’s exhortation on “understanding Islamic jurisprudence” is no less true for the Sahel and Northern Africa than it has been for Iraq and the Middle East.  Make no mistake: “Zones of non-governance or jihad now stretch across the Muslim world,” affecting Nigeria, Mali, Sudan, and Somalia.[35]  So “[a]s it was in Iraq,” according to former Navy SEAL and author Dick Couch, “the final assessment of whether we ultimately win or lose [in Africa] lies with our success in the conduct of [FID].”  Still, whether we ultimately win or lose in FID requires the learning of local law and culture.  To MARSOF: build up programs on operational law and operational culture.  Rule of law wins in the overlap.

 

Conclusion

 

The 2017 NSS sets rule of law as a priority in its strategy for Africa.  Rule of law is integral to the military’s mission (Part I), and rule of law requires an understanding of operational law, particularly local law and cultural norms (Part II).  FID’s prominence in stability and security continues to make DoD—especially SOF—indispensable.  But without rule of law, U.S. forces fail to win the peace.  And without an understanding of local law and culture, rule of law efforts fall short.  Conditions in the Sahel present a profound opportunity to stave off the worst consequences of instability and insecurity, and the United States must take heed.  After all, “the best way to win a war is before it ever begins.”[36]

 

End Notes

 

[1] Barbara Starr, Niger ambush investigation focuses on key questions, CNN, December 7, 2017.

[2] Dick Camp, Carnage and Courage: At the Saddam Canal Bridge, Leatherneck, 54-59, March 2018. 

[3] Michael R. Gordon and General Bernard E. Trainor, Cobra II: The Inside Story of the Invasion and Occupation of Iraq, p. 320.

[4] Iraq: law of occupation, House of Commons Library Research Paper 03/51, 2 June 2003, http://researchbriefings.files.parliament.uk/documents/RP03-51/RP03-51.pdf

[5] Press Statement, U.S. Central Command, Visions of Freedom: 100 Iraqis Meet in Nasiriyah and Create Basis for New Government, 15 April 2003, https://2001-2009.state.gov/p/nea/rls/19714.htm

[6] According to Max Boot, “there was a puzzling lack of preparation at the White House, Defense Department, Central Command, and other agencies for running Iraq after Saddam Hussein’s downfall.”  The Savage Wars of Peace: Small Wars and the Rise of American Power, 339.

[7] “[T]he U.S. military entered Iraq in the spring of 2003 with little if anything in the way of a plan for Phase IV operations.”  Bathsheba Crocker, John Ewers, and Craig Cohen, Rethinking and Rebuilding the Relationship between War and Policy: Post-Conflict Reconstruction, in Rethinking the Principles of War, p. 361. 

[8] Crocker, Ewers, and Cohen, p. 361. 

[9] http://library.rumsfeld.com/doclib/sp/4075/2005-01-28%20To%20Gen%20Dick%20Myers%20re%20Stability%20Operations-%20Memo%20Attachment.pdf

[10] James Baker, In the Common Defense: National Security Law for Perilous Times, pp. 308-309.

[11] See Patrick J. Paterson, Training Surrogate Forces in International Humanitarian Law: Lessons from Peru, Colombia, El Salvador, and Iraq, JSOU Report 16-9, 2016, p. 79.

[12] https://2001-2009.state.gov/outofdate/bios/n/50490.htm

[13] Jon Finer, H.R. McMaster is hailed as the hero of Iraq’s Tal Afar.  Here’s what that operation looked like., February 24, 2017, The Washington Post, https://www.washingtonpost.com/posteverything/wp/2017/02/24/h-r-mcmaster-is-hailed-for-liberating-iraqs-tal-afar-heres-what-that-looked-like-up-close/?utm_term=.afb6fb756254

[14] Neuman’s review of Nadia Schadlow’s book, PRISM. 

[15] Nadia Schadlow, War and the Art of Governance: Consolidating Combat Success into Political Victory, p. 254.

[16] Boot, Savage Wars, p. 339. 

[17] “Marines have expressed frustration with trying to work with foreign militaries and police that have completely different notions of appropriate interactions with the population.”  OC, 167. 

[18] According to foreign relations law scholar Curtis Bradley, “the U.S. government gives significant attention to the international laws of war, in part [] because of a longstanding commitment to the values reflected in these laws.”  International Law in the U.S. Legal System, 285.

[19] Rule of law “requires modern and effective legal institutions and codes, and it also requires a widely shared cultural and political commitment to the values underlying these institutions and codes.”  Jane Stromseth, David Wippman, and Rosa Brooks, Can Might Make Rights? Building the Rule of Law after Military Interventions, p. 78.  

[20] Lecture: The Role of the Judge Advocate in Contemporary Operations: Ensuring Moral and Ethical Conduct During War, The Army Lawyer, DA PAM 27-50-456, May 2011.

[21] Operational Culture for the Warfighter, p. 168. 

[22] Unifying Physical and Psychological Impact During Operations, Military Review, March-April 2009.

[23] Terrorism and Just War: A Comparative Analysis of Western and Islamic Precepts, October 22, 2017, The Strategy Bridge

[24] See JP 3-07: “The rule of law in a country is characterized by just legal frameworks, public order, accountability to the law, access to justice, and a culture of lawfulness.”  See also FM 3-7: “Long-term development aims to institutionalize a rule of law culture within the government and society.”

[25] Stromseth, Wippman, Brooks, pp. 322-323.

[26] Security Sector Reform, https://www.state.gov/documents/organization/115810.pdf

[27] United Nations Security Council, The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2004/616

[28] Kofi Annan, Interventions: A Life in War and Peace, p. 149.

[29] Stromseth, Wippman, Brooks, p. 78.

[30] Crocker, Ewers, and Cohen, p. 374. 

[31] MCWP 3-05, Marine Corps Special Operations, p. 2-8.

[32] Rosa Brooks, How Everything Became War and the Military Became Everything: Tales from the Pentagon, p. 86. 

[33] And they have had some significant success.  Mali is the most notable example, having long stood as a paragon of a stable democracy until a sudden coup in 2012. 

[34] Cultural Awareness & Irregular Warfare: French Army Experience in Africa, Military Review, July-August 2006.

[35] Henry Kissinger, World Order, 143-144.

[36] A quote superimposed over a photograph of a Marine kneeling to talk to a child in Chad, seen on a poster at the Headquarters building, U.S. Marine Corps Forces, Special Operations Command.

 

About the Author(s)

T. Nelson Collier is a former active duty Marine officer, a current Marine Forces Reserve officer, and a lawyer for veterans' rights.  He is a specialist in the law of military operations and the law of war, and has earned a specialist’s degree in National Security Law from Georgetown University Law Center.  He has also developed an interest in issues concerning the security environment of the African continent, most notably the Sahel and the Maghreb.  His research interests include law of war, special operations forces, history, use of force, issues affecting veterans, and the practical applications of moral and political philosophy.

Comments

1.  First, from the beginning of our article above:

"Several months after the Niger ambush, the President of the United States issued the 2017 National Security Strategy (NSS).  The 2017 NSS strategy toward Africa reiterates the rule of law as a priority.  Rule of law is integral to the military’s mission (Part I), but rule of law requires an understanding of operational law, particularly local law and cultural norms (Part II)." 

2.  Next, from Samuel P. Huntington's 1993 Foreign Affairs article entitled "The Clash of Civilizations" and, therein, the major section "The West Versus the Rest:"

"... The West in effect is using international institutions, military power and economic resources to run the world in way that will maintain Western predominance, protect Western interest and promote Western political and economic values ..." 

 "... Western concepts differ fundamentally from those prevalent in other civilizations.  Western ideas of individualism, liberalism, constitutionalism, human rights, equality, liberty, rule of law, democracy, free markets, the separation of church and state often have little resonance in Islamic, Confucian, Japanese, Hindu or Orthodox cultures.  Western efforts to propagate such ideas produce instead a reaction against 'human rights imperialism' and a reaffirmation of indigenous values ..." 

3.  Last, from further on in our article by T. Nelson Collier above:

"The rule of law refers to a principle of governance in which all persons, institutions, and entities (public and private, including the State) are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and are consistent with international human rights norms and standards."

4.  My conclusion:  We can -- very easily I suggest -- see the problem here.

This being that -- in the pursuit of "maintaining Western predominance, protecting Western interests and promoting Western political and economic values" (see the first part of my item 2 above) -- the institution in other states and societies of a "rule of law (that is) consistent with international human rights norms and standards" (see my item 3 above); this such rule of law -- to the indigenous populations concern -- amounts to (see the second part of my item 2 above):

a.  "Human rights imperialism" (and, thus, gross illegitimacy) and, accordingly:

b.  Produces (1) "a reaction against same" and (2) "a reaffirmation of indigenous values."

5.  Bottom Line Thought -- Based on the Above: 

If -- in invasion, occupation, etc., of other states and states and societies -- you wish to achieve "stability," then you must bite the bullet and forget about (a) attempting to use the intervention; this, as (b) a way to transform these other states and societies more along modern western political, economic, social and value lines.  (The implementation of a rule of law -- "consistent with international human rights norms and standards" -- this to be seen, exactly, in this "attempting to transform other states and societies more along modern western lines" light.)

If, however, your goal is, indeed, to (a) use the intervention; this, (b) as a means to transform other states and societies more along modern western lines, then (c) bring enough troops -- and other resources (to include such things as time, money, home front support, political capital, etc.); this, to accomplish this such (unwanted, highly "in your face," alien, profane and illegitimate to the populations concerned) mission.

You simply cannot have it both ways (to wit: both "stability" and "transformation").  One, in truth, must prioritized one over the other.

Stated another way:  (a) "understanding local law and cultural norms;" this -- obviously -- (b) does not allow you to, thereby, impose on the indigenous populations "a rule of law that is consistent with international human rights norms and standards" (to wit: a rule of law that is both alien and profane to these populations).