The U.S. Military’s Role in Rule of Law Development

United States military forces have been taken a very high-profile role in the development of both the Iraqi and Afghan legal systems for several years, yet there remains to date no coherent account of why or when U.S. forces should be involved in foreign nations’ legal systems or what doing so entails. The problems presented by having the U.S. military involved in these rule of law programs is distinct from the larger concern over cultural imperialism in international legal development more generally (although those broader concerns certainly apply to this more specific case). Rather, the specific question this chapter addresses regards the implications of having U.S. military forces involved in rule of law development.

The Iraqi and Afghan examples – extreme as they are in both scope and scale – are valuable sources of instruction, and so much of my focus is on military involvement as part of military interventions. These examples tend to obscure an aspect of U.S. development policy that is critical to understanding the U.S. military’s role in rule of law development: Much of the U.S. military’s work in foreign legal development occurs not in the context of military interventions but (less controversially) as part of normalized foreign relations with other countries – particularly developing countries – as part of broader “security assistance” relationships.

The comparison of theory to reality reveals that how the military can and should engage in rule of law development is necessarily contextual. That recognition goes a long way toward explaining how U.S. rule of law development efforts have actually been conducted during the Iraq and Afghanistan conflicts and further suggests the need to develop an institutionalized capacity within the U.S. military to conduct rule of law development, both as part of large-scale interventions and in normalized, small-scale security assistance relationships. Moreover, there is a clear relationship between small-scale rule of law development in the security assistance context and building the ability of the U.S. military to conduct large-scale development efforts in the context of intervention.