Judicial Reconstruction and the Rule of Law

Reassessing Military Intervention in Iraq and Beyond


The idea of building a blueprint ‘rule of law’ through military intervention has seized the imagination of practitioners and theorists alike in the past decade of peacebuilding operations, and an emphasis on simultaneous judicial reconstruction and security sector reform has emerged as their central strategy. This work, in a fresh approach based on recent military operations in Iraq and beyond, challenges both the universality of the blueprint and the doctrinal assumption that institutional reform by military interveners builds peace and legitimacy. In a comprehensive review, the essential role of the community in developing its own relationship with law, while interveners refocus exclusively on restoring public security using their extraordinary powers under international humanitarian law, emerges as the only future for ‘rule of law operations.’

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Angeline Lewis, SJD (2010) in international law, Australian National University, is a Legal Officer in the Royal Australian Navy. Drawing on her experience in Iraq, she has written several works in her personal capacity on the role of the ‘rule of law’ in military operations.
Table of Abbreviations; Acknowledgments; Preface; Introduction;
1. The Failure of Rule of Law Operations: an Introduction to Iraq 2003-08
Chapter One The Rule of Law in International Law – A Reassessment
1.1 The Rule of Law in Military Operational Doctrine
1.2 The Rule of Law in International Legal Theory
1.3 The Problem of Universality in Theory and in Current Law
1.4 The Rule of Law as a Negotiated Relationship Between Subjects and Law
1.5 The Imperialist Agenda of the International Rule of Law
1.6 Conclusion
Chapter Two The General Legislative Competence of an Occupant as to the Domestic Rule of Law
2.1 Belligerent and Non-Belligerent Occupation
2.2 The History and Sources of Occupation Law
2.3 Purposive Limitations on the Competence of the Occupant
2.4 Conclusion: The Concern of Occupation Law with the Domestic Rule of Law
Chapter Three The Administration of Judicial Institutions under the Law of Occupation
3.1 Use of Domestic Criminal Courts to Try Occupation-Related Security Offences
3.2 Completing the “Administration of Justice:” Adding to or Adjusting the Domestic Court Hierarchy within the Contemplation of Municipal Law
3.3 Creating the Domestic “Administration of Justice” Outside Extant Municipal Law and Structures
3.4 The Character of the “Administration of Justice:” Authority to Intervene in Judicial Personnel Policy
3.5 Authority to Intervene in the Procedures of the “Administration of Justice”
3.6 The Effect of Occupation Law on Efforts to Create the Rule of Law Through Judicial Reconstruction
3.7 Conclusion: The Fundamental Problem of Security
Chapter Four Security Council Interventions outside an Explicit Occupation Framework
4.1 When is a State’s Failure to Demonstrate Rights-Based Rule of Law Itself Potentially Grounds for Intervention?
4.2 The Application of International Humanitarian Law and/or Occupation Law to Military Interventions Authorised by the Security Council
4.3 Security Council Authorisations under National Command with Host State Consent
4.4 Security Council Authorisations under National Command without Host State Consent
4.5 Security Council Authorisations under UN Command for Interventions Less Than Assumption of Transitional Administration
4.6 UN Transitional Authorities
4.7 Customary Law as a Response to the Legitimacy Deficit of Intervention
4.8 Conclusion: The Concern of Security Council Interventions with Restoring the Rule of Law
Conclusion Moving toward Rule of Law Legitimacy by Refocussing on Order in Intervention
5.1 Dismantling the Security/Rule of Law Interrelationship
5.2 International Legitimacy and Rule of Law Operations: Explaining Persistence despite Failure
5.3 The Remaining Role for Interveners
Bibliography;Index of International Instruments; Index of Cases; Index.
Academics, policy-writers and practitioners interested in rule of law and security reform through military intervention, judicial reconstruction, strategic military doctrine and, generally, operations in Iraq.
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