The tyranny of law

As the US administration seems to be losing control in Iraq, Britain’s liberal press has taken an increasingly critical tone, condemning the legal measures taken by the Coalition Provisional Authority (1). The Observer argues that ‘Paul Bremer, America’s proconsul in Iraq, should go. His autocratic rule has become a symbol of all that is wrong with the administration of the country’ (2).

There is little doubt that Bremer’s legislative ‘orders’ have increased instability and uncertainty in Iraq. Coalition Provisional Authority Order No1, the ‘de-Ba’athification’ decree issued on 15 May, has had the unintended effect of threatening tens of thousands of public sector Iraqi professionals in education and the health service with dismissal for membership of the Ba’ath Party (3).

Given that belonging to the Ba’athist movement was a precondition for getting anywhere in Saddam Hussein’s Iraq, Bremer’s order reached far beyond the senior Ba’athist elite. Most skilled professionals are under threat of losing their livelihoods, contributing little to reconstruction or to winning over support from the Iraqi middle classes (4).

CPA Order No2, issued on 23 May, dissolved the Iraqi army, making thousands of militarily trained men unemployed and penniless, creating unrest and removing the one force best equipped for taking on the majority of security tasks (5).

According to many in the UK press, the alternative, or ‘Plan B’, is to replace Bremer with a UN appointee ‘who has the backing of the international community’ (6). While such an Iraqi regime might be more popular with European governments, it is unlikely that greater UN involvement would make much difference to the Iraqi people.

US administrators have neither a monopoly on autocratic rule or on imposing counter-productive measures. This much is clear from the ‘internationally backed’ external regimes imposed on Bosnia and Kosovo, where the UN has been fully supportive of the autocratic rule of unelected and unaccountable international mandarins, like Lord Ashdown, the High Representative of Bosnia.

In 2002, Ashdown’s office externally commissioned a report into key areas of its legislation. The report, from a major policy research unit, was so damning it was never published (7). The report accuses the international administrators of taking on more powers than they have the resources to cope with, causing legal uncertainty through the use of retrospective legislation, passing legislation that slowed the return of minority refugees, and increasing inter-ethnic tensions.

Whether the USA runs Iraq with token aid from countries like Britain or whether the UN plays a more substantial role in preparing legislation, there remains the problem that the ‘rule of law’ cannot be imposed in the manner advocated by some. For certain theorists, whether of liberal internationalist or neo-conservative beliefs, it seems obvious that international bureaucrats can develop better laws than the people who live in post-conflict countries or their representatives. After all, they argue, these elites caused the misrule that ‘forced’ the internationals to take over, and the people did themselves few favours by voting such elites in or accepting their rule.

This understanding of the ‘rule of law’ as a set of solutions that can be drawn up in Brussels, New York or Washington and then imposed with the help of NATO troops, UN peacekeepers or EU pen-pushers is a bureaucratic fantasy, which causes more problems than it solves. Law that is disassociated from the political process of consensus-building and genuine social need is more a rhetorical statement of policy intent than a law of the land.

It is easy to issue laws and edicts, particularly when there is no need to gain the consent of elected or appointed representatives. For example, so far this year, Ashdown’s office in Bosnia has issued nearly 100 laws over the heads of state, entity and local elected assemblies – and this, remember, is eight years after the Bosnian conflict ended and the first internationally ratified elections were held.

Not only does there appear to be no immediate connection between the number of laws developed and implemented by these external authorities and any transition to self-government but, it seems, the opposite relationship is in play. Bosnia is caught in a vicious circle of growing unaccountable power. The Bosnian experience indicates that legal ‘solutions’ with little relationship to the political context can be worse than not meddling at all. While passing laws makes the international administrators look as if they are doing something useful, appearances can be deceptive. The failure of the high-handed approach of the US-UK ‘authority’ in Iraq to address political problems through the reliance on legal edicts is already clear.

The ‘rule of law’ of the international bureaucrats in charge of these war-torn states makes a mockery of the law itself. ‘Rule of law’ should not mean merely that there is a set of rules and regulations, backed up by the military, police and the courts. After all, any old dictator could do that. What distinguishes the ‘rule of law’ is that this framework is predicated on consent and the equality of rights, rather than on claims of ‘special knowledge’, whether that of the ‘divine right’, of Kings or the ‘civilising’ mission of a colonial administration. Without consent and popular engagement in the law-making process, the ruling authority in Iraq will not be able to generate government legitimacy or cohere Iraqi society.

The danger of prioritising the ‘rule of law’ above the political process is the risk of unregulated and arbitrary power. In Bosnia, the High Representative regularly dismisses presidents and prime ministers if they do not do his bidding. A similar danger is all too apparent in Iraq, under US and British administration, where there is no constitutional process of appeal for wrongful detention or capacity to challenge the rule of international administrators. Once the rule of law is separated from the democratic process, it becomes the rule of tyranny rather than the rule of justice.

To escape the hubris brought on by their military power, the Washington administrators would do well to heed the warning of the late Hans Morgenthau, the founder of ‘realism’ in international relations, who argued that while hubris was brought to ground through the political pressures of domestic politics, it was in the international field ‘that the belief in the limitless power’ of political doctrinaires was particularly dangerous, for here ‘the panaceas engendered by this belief have no connection whatsoever with the forces which determine the actual course of events’.

David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. He is the author of:

• Constructing Global Civil Society: Morality and Power in International Relations (Palgrave Macmillan, 2004)
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• From Kosovo to Kabul: Human Rights and International Intervention (Pluto Press, 2002)
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And he is the editor of:

• Protecting the Bosnian Peace: Lessons from a Decade of Nation Building (Routledge, 2004)
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spiked-issue: War on Iraq

(1) Iraq’s fresh start may be another false dawn, Brian Whitaker, Guardian, 5 September 2003; Four steps to peace in Iraq, Observer, 7 September 2003

(2) Four steps to peace in Iraq, Observer, 7 September 2003

(3) Order No 1, De-Baathification of Iraqi Society, Coalition Provisional Authority, 15 May 2003

(4) US decree strips thousands of their jobs, Jonathan Steele, Guardian, 30 August 2003

(5) Order No 2, Dissolution of Entities, Coalition Provisional Authority, 23 May 2003

(6) Four steps to peace in Iraq, Observer, 7 September 2003

(7) From Dayton to Europe: Land, Development and the Future of Democratic Planning (draft version for circulation to OHR only), European Stability Initiative, Berlin/Sarajevo, December 2002