Academic journal article Parameters

Building Democracies with Southern Command's Legal Engagement Strategy

Academic journal article Parameters

Building Democracies with Southern Command's Legal Engagement Strategy

Article excerpt

America has conducted itself in the post-Cold War era with the understanding that fostering democracies and encouraging military establishments subject to the rule of law are vital to US national security interests. [1] In this regard, the warfighting unified commands mirror the overall US national security policy of peacetime engagement not only by maintaining close contacts with allies and friendly governments for the purpose of imparting values and ideals associated with democratic principles, but by focusing this commitment through detailed engagement plans.

For example, in a document entitled "Strategy of Cooperative Regional Peacetime Engagement," General Charles E. Wilhelm, Commander in Chief of US Southern Command from 1997 to 2000 (now retired), set out his vision for Latin America and the Caribbean as "a community of democratic, stable, and prosperous nations...served by professional, modernized, interoperable security forces that embrace democratic principles, demonstrate respect for human rights, are subordinate to civil authority, and are capable and supportive of multilateral responses to challenges." [2]

In addition, recognizing that there is a legal dimension to almost every aspect of the US Southern Command engagement plan, the Office of the Staff Judge Advocate developed and published a first-ever legal engagement strategy in 1998. [3] The intent of the legal engagement strategy is to promote the concept of professional law-based militaries that operate in accordance with the rule of law, respect internationally recognized human rights, [4] and are subordinate to and controlled by democratically elected civilian governments. In short, the US Southern Command legal engagement strategy is a blueprint for democracy-building in the context of the rule of law. In the quest for war avoidance, this legal engagement plan is a unique force multiplier and contributes to the "shaping" dimension of the National Military Strategy.

The Importance of the Rule of Law in War Avoidance

In his groundbreaking book about warfare in the 21st century, Race to the Swift, Richard Simpkin argues that democracies must find "politico-legal devices" to confront the enemies that threaten today's societies, and that the armed forces of a democracy must carry out their duties in conformity with the rule of law. Simpkin states, "Democratic governments rest on the rule of law, and must so rest. [5]

The term "rule of law" was initially coined to refer to the common law system of jurisprudence with particular emphasis on equality before the courts. The more modern common meaning, however, encompasses those rules and legal standards of behavior recognized and practiced between states in the context of the community of nations, and connotes consistency in the application of democratically passed and impartially implemented and enforced national laws and regulations. In the words of University of Virginia law professor John Norton Moore, the importance of the rule of law is central to international relations: "Law... is vitally important. Even in the short run, the [rule of] law serves as a standard of appraisal for national actions and as a means of communicating intentions to both friend and foe, and perceptions about lawfulness can profoundly influence both national and international support for particular actions." [6]

In tandem with Professor Moore's admonishment, the Clinton Administration's Secretary of State, Madeleine Albright, said that of all the problems facing the Southern Hemisphere, none is more important than improving adherence to the rule of law. "Where justice is absent," Albright writes, "peace and stability of a nation and its neighbors come under threat; where justice is partial, citizens who do not have access to equal treatment lose faith in their government, and the forces of extremism grow strong; and where justice is unprofessional, crime flourishes, corruption grows, and economies suffer. …

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