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The Rule of Law - Diplomat Magazine Nov 2020

Sunday, 1st November 2020 • General Sir Richard Barrons KCB CBE

ANY OF THE INTERNATIONAL military-led interventions in living memory (and before that) illustrated the differences between the provision of basic military security by force and the establishment of the rule of law by consent — and the many challenges in transitioning from one to the other. This may seem obvious; the presence of foreign or even domestic soldiers on the ground is clearly not the same thing as security and justice being provided by civilian police ofhcers. The precise formula for how military forces hand on leadership and responsibility for security and order to civilian police, and then remain to support them for a while before finally withdrawing, varies in every situation, but there are some common themes around establishing the Rule of Law.

At the heart of the challenge is usually a complex combination of culture and circumstances. Many less developed and poorer countries struggle with weak national and local institutions, very limited resources, fragile infrastructure, and pervasive scope for criminality including corruption. These same countries often also have to manage a demanding mix of extensive rural terrain, densely populated urban ‘shanty towns,’ long porous borders in difhcult climate and terrain, and hard to control airspace and coastal waters. In such trying conditions it is hardly surprising that the provision of law and order in the face of instability is dominated first by a quest for sufficient security by force rather than the civilian policing by consent that many richer, more developed countries can enjoy. There is the proven — and understandable — danger that many countries can find it very hard to rise above this narrow and basic security approach, and as this becomes entrenched it breeds powerful vested minority, elite interests that then resist the changes that would be in the wider and best interests of a majority of the population.

There have been some unhappy experiences when an international presence has sought to shift too quickly from an environment where security exists primarily by force of international arms to locally-provided civil policing. The desire to declare victory and curtail expenditure is bound to be pervasive amongst donors in the international community, but big challenges usually need big efforts, not tokenism, to resolve. Urging on change at speed is often entirely at odds with the prevailing situation, the existing institutional capacity to absorb help, and the culture and experience of the population. Where the population has only seen police as a malign instrument enforcing partisan political control and engaged in systematic self-enrichment through illegal ‘taxation’ of the movement of goods and people, it will take time and effort to build trust as well as performance. In addition to poor policing, if the judicial system leaves the administration ofjustice open to purchase and the prison system is riven by shocking conditions and endemic corruption, the job to be done is even harder. There is often only a long and difhcult road to travel to get to impartial, efficient and effective Rule of Law, no matter how swift and decisive an opening military phase may have been.

In these conditions it is naive to imagine that achieving the same policing model as, say, Germany can be accomplished in only five years. This is where absurdities occur — such as the well-intentioned gifting of advanced European civil police vehicles as an opening measure, which are then immediately co-opted to become the personal transport and sleeping quarters of the local senior police officer. What is really needed is a carefully planned and managed transition. It requires a systemic approach to changing politics, culture, police, the legal system including common access to lawyers, the judiciary, and the penal system. It also means that control over what will be very large sums of money for salaries, activity and equipment is taut: the scope for a combination of weak financial administration in ministries and corrupt banking institutions to derail well-intentioned help is self-evident, yet too often left unchecked.

Time is important, the continuity and endurance of investment matters a great deal: a timescale of to years feels about right. Timing is important too: there is no point advancing to the next stage in the programme if the foundations are not solid. Progress can only be measured by evidence, not a calendar. Given the difhculties and the temptations, asserting ‘conditionality’ over the offer of assistance is an essential part of the programme. There must be transparency, information, and oversight to link verifiable progress to sanctions for non-compliance. Sanctions should include the removal or barring of unsatisfactory leaders from office at all levels and the ceasing of funding where individuals or institutions fall short. A premature rush to finish and exit coupled with a failure to address poor compliance have been systemic weaknesses in many interventions, with lasting implications for the essential public confidence amongst both donors and recipients.

It follows that that establishing the Rule of Law is much harder if it is not led and supported by political leaders at all levels. Trying to do this over the head of elected or ex-ofhcio leaders who command respect is a slow and frustrating approach. Of course, this also means that genuine accountability for establishing the Rule of Law extends to political leaders as much as to the new police ofhcers, or the people will quickly see limited value in making changes to their own behaviour.

It is usually only once basic military security has been established that it becomes possible to plan for the transition to civil policing. A number of steps need to be taken concurrently. First, the foundations for a new police service must be laid by investing in recruiting, vetting and training police, drawing on both existing staff and new people. In many settings this is the key to establishing an ethnic and community balance that is essential to winning policing by consent. The sooner that police training advances from internationally delivered training, to ‘train the trainer’ and then to locally delivered, internationally supported training the better.

This does not happen overnight and needs funding for pay, accommodation, equipment, uniforms and activity. It will also mean the newly trained police ofFtcers being mentored and accompanied on the ground until confidence and prowess is established. Training will break new ground as it must advance from the initial capability and expectation that police are there to just man checkpoints, to establish wider capabilities that instil public confidence in their new service — especially in the prevention and investigation of crime according to law. It is not enough to train from the shop floor up, there also has to be progress in developing leaders at all levels and in building the institutional resilience of policing in such things as planning, logistics, communications, medical support, and specialist skills such as forensic science and Improvised Explosive Device disposal.

Above a quite basic level, this training is best done by experienced civilian police officers, rather than international soldiers or military police. As soon as the new police service is able to take charge of major tasks such as election security and responding to larger scale public disorder it is important that it does so, with the military providing only reinforcement where required and focused on non-public facing work wherever possible. Military aviation support, especially transport helicopters and drones are often amongst the most appreciated resources.

The parallel improvement of the judiciary and the penal system have sometimes been the neglected partner of establishing the Rule of Law. Both require expertise that does not reside much in military organisations and both take time and investment to fix systemically. The requirement for conditional and generous international support, oversight and resourcing is no less great, but once a new culture and level of performance have been established the chances of it becoming self-perpetuating by weight of public expectation and demand should grow over time. Conversely, fixing the police without fixing the judiciary and the prison system is not ever going to establish the Rule of Law.

This is all a complex, lengthy business — with big prizes for the successful. The UN has great experience in such matters, yet struggles to bring all aspects together based on the mixed bag of capabilities that nations elect to offer. Few nations can themselves field a cohesive, complete ‘Rule of Law’ team to support another state except in a partnership with allies that exposes seams and gaps. The more the transition from basic security by force to Rule of Law by consent is planned and managed from the outset by a team of local and international political, military, police, judicial and penal expertise in a sufficiently resourced and lasting effort, the greater the prospects. This will often seem too difficult, lengthy and expensive to see through, but almost all other outcomes are worse, which is why organisations such as UDSS are committed to fielding highly capable multi-disciplinary teams to help.

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