The rule of law (ROL) has always been of great importance to all of NATO’s member states; it is one of the principles, along with democracy and individual liberty, which the Atlantic Treaty aims to guard. In fact, ROL is so central to NATO’s genetic makeup that a key concern holding back Ukraine’s potential membership is the country’s weak judicial system.

Due to the rule of law’s perceived foundational contributions to democracy, political stability and a host of other desirable conditions, it has increasingly been incorporated into NATO’s international peacekeeping and post-conflict reconstruction strategies. The term has secured its place as a buzzword next to democracy and development, to the point that no one questions its content anymore. Yet it is exactly this sort of empty acceptance of ROL as a desirable goal that makes further scrutiny necessary.

Peacekeeping

An increasing part of NATO’s peacekeeping efforts are centred on the strengthening of legal institutions, by ensuring the independence of the judiciary and the reduction of legal uncertainty, among other measures. NATO has been involved in this respect with their Rule of Law Field Support Mission (NROLFSM) in Afghanistan.

The support mission has five primary tasks: Security, Coordination, Movement Support, Engineering Support, and Oversight of the contractual process. Apart from its ROL Field Support Mission, NATO also added training missions in Iraq and counter-piracy operations off the Horn of Africa to its repertoire of emerging ROL contributions.

In these peacekeeping efforts, NATO has increasingly used a civil-military approach, exemplified by the creation of the post of Senior Civilian Representative in Afghanistan, currently held by Maurits Jochems from the Netherlands. This new cooperation with the local and international society marks a huge step-forward in civil engagement. Small on-the-ground examples can be glimpsed, such as the Dutch Provincial Reconstruction Team (PRT) teaching Afghan law students on the concept of rule of law through mock court trials.

Is NATO a Rule of Law Model?

While the outlined programs sound impressive, there are more complex questions to address. Firstly, ROL is a difficult concept to define. Just like procedural democracy and substantive democracy differ in the expansiveness of the concept, a simplified or complex version of ROL can make a huge difference. ROL at its instrumental level requires laws to be public, prospective, impartial and predictable, which says nothing about human rights, democracy and economic prosperity.

In peacekeeping operations, NATO should not erode the divisions between these concepts because there can be dangerous consequences. In fact, if ROL is established in countries without inclusive institutions, it will only serve to help autocratic governments suppress people further. Similarly, if ROL is intended to further the cause of human rights, then outside imposition of these rules run rather contradictory to its aims.

There are additional questions that NATO needs to address going into peacekeeping with a ROL agenda. One needs to ask whether NATO is imposing an international standard or establishing an Afghan-owned ROL. While the official description of NROLFSM, “To provide essential field capabilities, liaison and security to Afghan and international civilian providers of technical assistance supportive of building the Afghan criminal justice capacity”, seems to suggest local ownership, actual practice is more challenging. Unique local ownership will mean more time and more resources, and resources such as local lawyers can be hard to find due to displacement during conflict. In these cases, it is tempting to rely on international initiatives as has been done in the past. Great compromises and choices need to be made here.

As promoting the rule of law becomes an ever more important aspect of international peacekeeping, the Alliance will need a single coherent approach to ROL. It can take the United Nations ‘Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies” of 2004 as an outline of an integrated ROL strategy.

Most importantly, in order for NATO to credibly aid the establishment of ROL in post-conflict societies, it must itself be an exemplar of ROL. Looking at the World Justice Project’s Rule of Law index, it is evident that NATO members vary greatly in their performance, with countries like Italy comparing unfavourably with many of its peers. New member countries from Central and Eastern Europe fare even worse. NATO for its part will need to acknowledge the uneven development of its members if it wants to promote the rule of law abroad.