Judicial Reconstruction and the Rule of Law International Humanitarian Law Series

Judicial Reconstruction and the Rule of Law International Humanitarian Law Series VOLUME 39 Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Th eodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiří Toman Th e International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed confl ict. Th e series explores substantive issues of International Humanitarian Law including, – protection for victims of armed confl ict and regulation of the means and meth- ods of warfare – questions of application of the various legal regimes for the conduct of armed confl ict – issues relating to the implementation of International Humanitarian Law obli- gations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. Th e titles published in this series are listed at brill.nl/ihul Judicial Reconstruction and the Rule of Law Reassessing Military Intervention in Iraq and Beyond by Angeline Lewis LEIDEN • BOSTON 2012 Library of Congress Cataloging-in-Publication Data Lewis, Angeline. Judicial reconstruction and the rule of law : reassessing military intervention in Iraq and beyond / by Angeline Lewis. p. cm. -- (International Humanitarian Law Series ; 39) Includes bibliographical references and index. ISBN 978-90-04-22810-8 (hardback : alk. paper) -- ISBN 978-90-04-22811-5 (e-book) 1. Rule of law. 2. Intervention (International law). 3. Justice, Administration of. 4. Law re- form. 5. Humanitarian law. 6. Security, International. 7. Security sector. I. Title. K3171.L49 2012 340’.11--dc23 2012030278 issn 1389-6776 isbn 978 9004 22810 8 (hardback) isbn 978 9004 22811 5 (e-book) Copyright 2012 by Koninklijke Brill nv, Leiden, Th e Netherlands. Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the pub- lisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to Th e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Printed on acid-free paper. We note with sadness the passing of two esteemed members of our Editorial Advisory Board – Antonio Cassese (01 January 1937 - 21 October 2011) and Leslie C Green (06 November 1920 - 27 November 2011). Antonio and Leslie were outstanding scholars and enthusiastic supporters of the IHL Series and both will be sorely missed. For Terry. Table of Contents Table of Abbreviations xi Acknowledgments xiii Preface xv Introduction 1 1. Th e Failure of Rule of Law Operations: An Introduction to Iraq 2003-08 5 Chapter One Th e Rule of Law in International Law – A Reassessment 13 1.1 Th e Rule of Law in Military Operational Doctrine 14 1.2 Th e Rule of Law in International Legal Th eory 18 1.2.1 Formalism v Substantivism 19 1.2.2 A Rule of Law Blueprint 22 1.2.3 An Additional Complexity: Th e Rule of Law Blueprint as a Means to Other Ends 26 1.3 Th e Problem of Universality in Th eory and in Current Law 29 1.3.1 A Non-Universal Legal Language and Culture 30 1.3.2 Th e Employment of Rule of Law Rhetoric to Other Ends 35 1.3.3 Acceptable Derogation from Rights-Based Rule of Law Institutions in States of Emergency 37 1.3.4 Case Study: Derogability of the Right to a Fair Trial 40 1.4 Th e Rule of Law as a Negotiated Relationship Between Subjects and Law 46 1.4.1 Applying the Relationship Th eory of the Rule of Law to Current International Law 49 1.5 Th e Imperialist Agenda of the International Rule of Law 51 1.6 Conclusion 59 Chapter Two Th e General Legislative Competence of an Occupant as to the Domestic Rule of Law 61 2.1 Belligerent and Non-Belligerent Occupation 62 2.2 Th e History and Sources of Occupation Law 64 2.2.1 Th e General Legislative Competence of the Occupant 66 2.2.2 Rejecting the Full Transfer of Domestic Legislative Competence 68 viii Table of Contents 2.3 Purposive Limitations on the Competence of the Occupant 70 2.3.1 Competence Regarding the Occupant’s Security 70 2.2.2 Competence to Facilitate the “Administration of Justice” 73 2.3.3 Restoring “l’ordre et la vie publique” 74 2.3.4 Restoring the Status Quo Ante v Humanitarian Intervention 78 2.4 Conclusion: Th e Concern of Occupation Law with the Domestic Rule of Law 82 Chapter Th ree Th e Administration of Judicial Institutions under the Law of Occupation 83 3.1 Use of Domestic Criminal Courts to Try Occupation-Related Security Off ences 85 3.1.2 Endowing Municipal Courts with the Occupant’s Security Jurisdiction 87 3.2 Completing the “Administration of Justice:” Adding to or Adjusting the Domestic Court Hierarchy within the Contemplation of Municipal Law 91 3.2.1 Intent to Inculcate Values in the Revived Municipal Court Structure 92 3.2.2 Amendments to Extant Municipal Jurisdiction, Especially Civil Jurisdiction 93 3.2.3 Creation of Municipal Court Access to Replace Capacity Lost by Fact of Occupation 94 3.3 Creating the Domestic “Administration of Justice” Outside Extant Municipal Law and Structures 98 3.3.1 Establishing Ad Hoc Tribunals to Administer Transitional Justice 100 3.3.2 Acquiescence in, or Failure to Suppress, Extra-Judicial “Courts” 102 3.3.3 Court Interventions Unrelated to Criminal Justice 103 3.3.4 Establishment of Altogether New Permanent (Criminal) Courts 105 3.4 Th e Character of the “Administration of Justice:” Authority to Intervene in Judicial Personnel Policy 110 3.4.1 Removal of Judicial Offi cials 112 3.4.2 Appointment and Re-appointment of Judicial Offi cials 115 3.4.3 Th e Problem of Legitimacy: Social Engineering by the Occupant 116 3.5 Authority to Intervene in the Procedures of the “Administration of Justice” 118 3.5.1 Creation of New Substantive Off ences, and Amendment to Old 118 3.5.2 Introduction of Non-Security Related Rights Discourse 121 3.5.3 Case Study: Th e Right to Defence Counsel 123 3.6 Th e Eff ect of Occupation Law on Eff orts to Create the Rule of Law Th rough Judicial Reconstruction 125 3.6.1 Th e Occupant as a Non-Participant in the Legal System 128 3.6.2 Competence of the Occupant to Act Contrarily to Rule of Law Principle in the Pursuit of Order 131 3.7 Conclusion: Th e Fundamental Problem of Security 132 Table of Contents ix Chapter Four Security Council Interventions outside an Explicit Occupation Framework 135 4.1 When is a State’s Failure to Demonstrate Rights-Based Rule of Law Itself Potentially Grounds for Intervention? 138 4.1.1 Rejection of Judicial Activity as an Act of State in International Criminal Law 140 4.1.2 Th e Universality of ‘Justice’ in the Mens Rea of Judicial Crimes 142 4.1.3 Criminality of Legal Features Contra Rights-Based Rule of Law 144 4.1.4 Humanitarian Intervention to Restore Rule of Law Judicial Institutions 145 4.2 Th e Application of International Humanitarian Law and/or Occupation Law to Military Interventions Authorised by the Security Council 147 4.3 Security Council Authorisations under National Command with Host State Consent 149 4.3.1 Security through Direct Participation in Judicial Process: CCCI-K 152 4.3.2 Security through “Building Judicial Capacity:” CCCI-Rusafa 154 4.3.3 Th e Link Between Effi cient, Rights-Based Judicial Review and Security: CCCI Practice 157 4.3.3.A Inadequate Administrative and Judicial Procedures 158 4.3.3.B Inadequate Realisation of the Right to Defence Counsel 160 4.3.3.C Delays 162 4.3.4 Th e Link between Security and the Rule of Law 164 4.3.5 Administrative Detention for “Imperative Reasons of Security” and Its Rule of Law Eff ect 165 4.3.6 Multinational Involvement in Consent-Based “Rule of Law” Interventions 169 4.4 Security Council Authorisations under National Command without Host State Consent 170 4.5 Security Council Authorisations under UN Command for Interventions Less Th an Assumption of Transitional Administration 171 4.5.1 Authority to Use “All Necessary Means” to Restore Security 174 4.5.2 Specifi c Authority to Assist or Participate in Judicial Measures 175 4.5.3 Th e Link Between Security, the Judicial System and the Rule of Law 177 4.6 UN Transitional Authorities 179 4.7 Customary Law as a Response to the Legitimacy Defi cit of Intervention 188 4.8 Conclusion: Th e Concern of Security Council Interventions with Restoring the Rule of Law 200 x Table of Contents Conclusion Moving toward Rule of Law Legitimacy by Refocussing on Order in Intervention 203 5.1 Dismantling the Security/Rule of Law Interrelationship 204 5.2 International Legitimacy and Rule of Law Operations: Explaining Persistence despite Failure 207 5.3 Th e Remaining Role for Interveners 213 Bibliography 219 Index of International

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