David Marshall, editor of The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward, discusses the international rule of law as an industry–one that has been promoted as offering solutions in post-conflict and fragile states and that too often fails. Marshall discusses some of the reasons for these failures and outlines some alternative approaches to interventions in fragile states. (September 2014)

The following is a transcript

SARAH SCHWEIG: Hi, I’m Sarah Schweig of the Center for Court Innovation and today I’m speaking with David Marshall, who has just edited and released a new book called “The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward.” David Marshall is a senior law and policy advisor at the U.N. Office for Human Rights. His background is in trial work, mainly in criminal defense and death penalty cases. He has extensive field experience in post-conflict states including Afghanistan, Iraq, Kosovo, Nepal, and South Sudan. Thanks for speaking with me today, David.

DAVID MARSHALL: Great, thank you for the invitation.

SCHWEIG: Rule of law, very, very basically, as I understand it means that individuals, institutions, and even the government itself agree to be held accountable to a code of rules, correct?

MARSHALL: That’s about right. There’s a equality of arms. There’s equity in the process however the process is defined, non-discrimination. There are some sort of core principles: supremacy of law is one of them. But one thing, which we’ll get to, which is–why the book–is, the content of the Rule of Law was much discussed in 2012 by the global community when all member states of the U.N., as the world countries, got together to discuss the rule of law and its content.

SCHWEIG: The new book is on the International rule of law movement, so maybe you could talk about what this movement really means, sort of what you just mentioned, and why, as your title says, it’s currently in a crisis of legitimacy.

MARSHALL: Just to make clear on the outset that obviously these are my views. These views may or not represent the organization I work for, the U.N. as a whole. The rule of law movement has been around forever and thus. It has probably been around for 60 years. It’s an attempt initiated by the West to help emerging states, those states moving away from communism, those states coming out of former Yugoslavia in the 80s, in the 90s, fragile states:  Congo, Afghanistan.

The last 40 or 50 years has been a huge endeavor to help states reform, repair, rebuild justice systems; it’s been predominately focused on criminal justice reform and it’s been an endeavor that has had modest success, at best. The movement has become an industry. Up until 2003, there was some efforts by some countries. This country, the U.S., is a major player in this movement, but 2003 and beyond, which is sort of one of the reasons for the book, is this being an explosion of activity. The consequence is you have thousands of NGOs. You have thousands of guidance materials. Thousands of experts, all mainly from English-speaking countries.

We have all of this information about the rule of law, but we really understand so little. I wanted to explore in 2013 or 2014, given this being such modest success and this being a mini-industry–exploring why it’s been a failure.  I wanted to explore, why, not the standing the modest success, why has there been this explosion, which is that coupled with the 2012 declaration by the world’s countries as to the rule of law was sort of the catalyst for the book.

SCHWEIG: You’ve had experience on the ground in Afghanistan, Iraq, Kosovo, and other more moratoria countries. What were some of the things that you observed, maybe on the ground, that led you to compile this book?

MARSHALL: I learned that the international community has a profound deficit of knowledge, of where it works, where it doesn’t: Afghanistan, Iraq, Haiti, Liberia; I mean choose your fragile state. Our knowledge around the language, the culture of justice means the deficits are profound around who we are, and why we’re there, what we’re doing, what we know about what we’re doing. And that hasn’t changed. That has dogged the industry for decades, the knowledge deficit, and secondly, that obsession with institutions. We have a lot of rhetoric around supporting national ownership, nationally driven processes, but generally the international community tends to focus on institutions and persons working therein, as opposed to the individual. The consequence is that we are focused on institutions, institutions generally around criminal justice, so an addition to a deficit of knowledge, that  is, I would suggest, profound. The other problem is that our theory of this work, the rule of law, it’s more of a law-and-order narrative.

We generally, the international community, sees the rule of law through a law-and-order prism, and that is basically supporting police, supporting prison reform. But that’s usually building prisons and supplying batons to police officers. I’m not suggesting that there isn’t a need in some stage for security apparatuses and supportive to coercive institutions is clearly needed. But we seem to get stuck in that for decades. I also think that one thing I’ve learned is that rule of law is, and it’s a bit of a cliche, but it’s truly indigenous. We have this sense that we arrive with this model called the Rule of the Law: “If you please build your institutions that look like ours, you are good to go.” The evidence, I suggest, is in and that’s been a failure. That’s one thing in the book that I think it’s important to recognize, is that it’s okay to say, “It’s been a comprehensive failure.”

The international community has an aversion to failure, so we can better understand when we spend $4 billion dollars in Afghanistan, of American taxpayer money over 12 years on justice reform, and the inspector general says basically this can come to naught, within a year, we need to sort of really stop and think about why we’re doing this.

SCHWEIG: Obviously, throughout the book there’s some agreement and some disagreement, some tension in perspective. Can you tell us a bit about the ideas that you think harmonize in the book and then some of the ideas that conflict across the different essays?

MARSHALL: I think one of the major ideas I think where there’s a consensus is the deepening of knowledge. I mean it’s a bit of cliche–it’s been identified as a problem for years, but there’s a great piece on when the rule of law movement meets Iraq. We meets context where the Islamic law is applied.  An increasing issue for the world community is we’re building the rule of law in Somalia, Mali, and Afghanistan. We don’t really talk enough about when the movement hits an Islamic state and that chapter by Haider Hamoudi from Pittsburgh is terrific and also the piece on South Sudan. Sometimes these often indigenous processes, customary processes, are okay. They are delivering some semblance of justice and have been for decades, so rather than trying to suppress and replace these customary processes, tribal chiefs or religious shuras in Afghanistan and Iraq, why don’t we learn about them?

The other thing is that we’re a little tired of the rule of law. It has such baggage–the evidence doesn’t support that rule of law will lead to economic empowerment, more or greater human rights promotion or protection. So if we can all just lower the rhetoric a bit. Stop the rhetoric around comprehensive approaches to rule of law reform because modest goals are honestly more achievable. Modesty, humility would be helpful and Deborah Isser talks starting by identifying injustices and insecurities the population are suffering. Let’s start there, well that’s the conversation sort of. What’s the major injustice in that country and often it has nothing to do with criminal justice.

I think there’s a little bit of tension mainly with Jim Goldston’s piece, which is that the endeavor is a good faith endeavor by the international community. There have been some modest success and the rhetoric is to some extent a runaway train, but all it basically needs is a bit of adjusting, more investment, and knowledge, and skills and capacity of the internationals. That’s not my view for what it’s worth.

The piece that was done by Todd Foglesong at Harvard is interesting because it’s just a small project with reforming the prosecutor’s office in Lagos, Nigeria. And I’m coming back to the issue of modesty. Where you have a concrete example of where there’s a small modest project. The success was about both modesty and about relationships and how they built over four years a relationship with the prosecutor’s office. That really helped them stress the issue of arbitrary detention, prolonged detention in Lagos. That’s a really fascinating piece. The question is whether the international community, which goes big, right, is looking for the Big Bang of success in the rule of law. It doesn’t exist, stop looking. I don’t know whether the international community can accept modesty and humility. Time will tell. I mean $4 billion dollars in Afghanistan of taxpayers’ money is a lot of money. And I’m wondering when our people will say enough?

SCHWEIG: What do you think the way forward now would be?

MARSHALL: The way forward is radical change. The way forward is basically stop. The best we can, however improbable that suggestion is, to stop and digest who this community is, what they’re trying to achieve, so that the objectives of this endeavor–what the key objectives? Because I say in my chapter that surely the objectives are basically human rights objectives. We need to sort of stop, take stock of what we’ve done, what we’re learning. I’m suggesting for the U.N. that we play a more strategic role, helping states think through the strategic direction of a new justice system and that’s more than law, more than the human rights law. That’s, in my view, the only really leverage tool we have in our tool box.

I think it’s okay to ask these deep questions. It’s whether or not the international has the maturity and the patience to do so.

SCHWEIG: Thanks so much for speaking with me today. I’m Sarah Schweig of the Center for Court Innovation. I’ve been speaking with David Marshall of the U.N. about his work in post-conflict states and his new book, “The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward” from Harvard University Press. To learn more about the Center for Court Innovation, please visit us at www.courtinnovation.org. Thanks for listening.