On March 27, President Barack Obama addressed the nation regarding his proposed “Development, Diplomacy and Defense” approach to addressing the “increasingly perilous” threat of Al Qaeda.  Although his plan includes increased military presence in Afghanistan, he also emphasized the importance of developing the institutional infrastructure from the “bottom up” so that local actors will invest in the economic, political, and legal reforms of their nation.

As I listened to Obama on NPR, I noted how he referred to many of the same concepts and issues I teach in “Comparative Study of Transitional Justice.”  This course exposes students to different case studies of how countries have tackled the arduous task of transitioning from conflict and repression to peace and stability.  In particular, we have discussed the use of truth commissions and criminal trials as mechanisms used by nations like Peru, Chile, and South Africa, among others, to address past legacies of human rights violations. Often these measures seek to promote both reconciliation and the rule of law.

The course requires students to journal on their reactions to these topics.  Not even a month into the process, 3L Nick Heitman challenged the usefulness of goals like accountability, truth, social reconciliation, victim reconciliation, victim recognition, and compensation if a country ignores institutional reform.   He wrote,

I argue this point because the atrocities of the past government cannot be taken back; all that can be done is preventing them from happening again.  Institutional reform containing a system of checks and balances is the only way that a government can be prevented from committing these horrible acts in the future. Only reforming the institutions of the government can create the economic, social, and political stability that is needed to ensure long-term success of democracy.

Mr. Heitman’s observations gained credence when two guest speakers spoke about their respective work on the rule of law in Afghanistan and Iraq.   Specifically, on March 2^, we heard from Michael Tobin, a colonel in the Wisconsin Army National Guard who worked as a Judge Advocate and Rule of Law Officer for Combined Forces Command in Afghanistan.  Then on March 26, we listened to Matthias Onderak (MULS Class of 2000) who as an Assistant U.S. Attorney in the Southern District of Indiana served this past year with the U.S. Justice Department’s Rule of Law Program in Iraq.   Both speakers offered students a first-hand account of the significant challenges of building the rule of law from the bottom-up in worn-torn societies.

Mr. Tobin spoke of working with the handful of brave members of the legal profession who had chosen not to flee their country during the Taliban’s rule.   Without courthouses, judges often travel from one village to another in the “circuit court” fashion of our own early federal justice system.   Afghan lawyers struggle to reconcile the religious Sharia law with common civil law in order to offer Afghanis a fair system of justice that upholds human rights.   Mr. Tobin also shared PowerPoint pictures of a vast and arid land spotted by nomad people and roaming groups of orphaned children.  He casually spoke of bullets flying by his head while he visited remote villages.

Johnathan Cattey who is a 2L commented on Mr. Tobin’s talk,

It reminded me that sometimes the classroom analysis and theory of transitional justice/rule of law is very removed from the actually challenges that are faced in many countries such as Afghanistan. Aside from attempting to establish some stability in the government and legal system of the country, Mr. Tobin also had to worry about surviving. It must be quite difficult to keep focused on the task at hand, when your physical safety is being constantly threatened or at least questioned.

Classmate Alyssa Dowse (2L) focused on Mr. Tobin’s sobering account of one of the greatest challenges to rebuilding a war-torn nation:  interpersonal conflicts and logistical mismanagement that gets in the way of “synchronization.”  She writes,

For these reasons, it appears that regardless of how different groups believe a country should be rebuilt, it is necessary that all parties are open to each others’ views and create a plan that encompasses all interests and goals.  If one party — the controlling military troops — just wants to move on, it may be difficult for the other parties to want to communicate and create a common plan.

Likewise, visitor Mr. Onderak shared the practical challenges to building the rule of law in Iraq.  As a civil servant, he lived in a tiny trailer without running water or windows.  He left the barracks only with 48 hours notice to the military, and was then accompanied by eight armed soldiers and carried his own pistol and wore armor.    Admirably, Mr. Onderak left his wife and three children for a year as what he perceived as his duty to serve his country and also to give back to the Iraqis.

Mr. Onderak realized that much of the success of creating local buy-in to institutional reform depended on slowly cultivating a culture that valued the rule of law.  Astutely, he spent his first month just listening and asking questions to orient himself to the local system and culture.  His approach was then comprised of much more than rewriting laws and training lawyers.  Rather, he worked creatively to help internalize a respect for law.

For example, he questioned the possibility of cultivating respect for the rule of law if judges worked in dilapidated make-shift courthouses whose walls could be kicked in. Thus, he lobbied the Iraqi government to invest $250 million (an unexpected boom in the local budget came with rising oil prices) for the physical reconstruction of the courthouses.  At the same time, he recognized that the public needed to believe in the administrators of justice.  Consequently, he worked with the media to profile the success of local criminal trials to convey that law breakers would be held accountable and that judges would follow fair procedure (for example not accepting coerced confessions as evidence).

Mr. Onderak focused on raising the public’s esteem for the local judges, whom he called “the bravest people” he knew, by assuring that the public noticed when they were visited by diplomats.   This simple strategy seemed to raise their prestige as evidenced by an increased interest of the government in the judiciary.  Mr. Onderak also recognized that mistrust of the security forces directly undermined building the rule of law.  So he orchestrated visits to local schools by Iraqi police forces to chip away at this distrust through opportunities for face-to-face interaction.   The program made the police feel like heroes, perhaps exemplified most by the fact that they began to visit schools on their own and placed photos of the events on their office walls.

Yet, understanding that such gestures would not go to the core of changing ingrained habits, Mr. Onderak also focused on providing training to all law enforcement actors in order to begin strengthening their understanding of rule of law principles.

Seemingly impressed with Mr. Onderak’s heroic work, 2L Nate Dineen wrote that

he made a very clear point to illustrate that it was important to make sure that the Iraqi people bought into the idea of a society with rule of law. . . . How can this possibly occur if a society is either not familiar with a system or does not have faith in it?  Onderak stated that the judiciary in Karbala was the strength of the rule of law in the region. . . .Through his actions it must have elucidated that he truly cared to see improvements in Karbala’s rule of law.  From the lobbying to build new courthouses to the desire to elevate the status of the judges, the judiciary and society must have seen the commitment, if not from one man, but from a nation.

Both Mr. Tobin and Mr. Onderak helped to bring the world to the MULS classroom by blowing life into the concepts and experiences we have been learning about.  Most importantly, they revealed that assuring lasting peace requires more than just military intervention, but perhaps more importantly, also necessitates creating the cultural norms to support rule of law reform.