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Sharpen the Sales Pitch

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If Western democracies want to export their version of the rule of law to developing regions of the world, they had better think about improving both the product and their sales pitch.

That was one of the key themes coming out of a September symposium that was co-sponsored by the ABA and the International Bar Association.

“The truth is that the values and processes associated with the rule of law are questioned by many people today,” said keynote speaker Mary Robinson, the former president of Ireland who later served as U.N. high commissioner for human rights. “We live in times of new threats to human security and public order. Our job as lawyers is to make the case that it is precisely these dangers–and the changing, more interconnected world we live in–that make strengthening respect for the rule of law so important.” But that may not be an easy task, acknowledged Robinson and other speakers at the gathering in Chicago.

“Different parts of the world have different needs,” said John Scriven, senior vice president and general counsel to ABB Ltd., a power and automation technology company in Zurich, Switzerland. “They need the rule of law, but they may not need democracy right now. We tie the rule of law to democracy, but democracy is under challenge right here in the U.S. You can’t suspend the rule of law when the going gets tough.”

The symposium–the first gathering of its kind jointly sponsored by the ABA and the International Bar Association brought together some 300 lawyers and other experts from around the world for two days of intense discussions about how to advance the rule of law in regions where it often has been an alien concept.

Organized bar leaders in the United States, the United Kingdom and elsewhere view rule of law initiatives as an important means to introduce stable legal systems in troubled regions and to address such concerns as terrorism, illegal trafficking of women and children, corruption, poverty, the environment and human rights violations. The symposium’s ambitious agenda reflected those wide-ranging concerns.

But throughout the symposium, attendees struggled to articulate rule of law principles that would translate with the same meaning in every political system and culture. “It’s very difficult to define what the rule of law is, but it’s very easy to see when it’s not being applied,” said M. Cherif Bassiouni, president emeritus of the International Human Rights Law Institute at DePaul University in Chicago.

Outgoing IBA President Francis Neate cautioned against a temptation for advanced nations to pursue a “colonial” approach to establishing the rule of law in developing countries.

“We must show proper respect for cultures other than our own and a willingness to learn from them,” said Neate of London. “An approach that says, ‘This is how we do it,’ is simply not enough.”

Moral Crossroads

A critical concern, said Neate and other speakers, is that democratic rule-of-law principles are losing credibility in many regions of the world. In particular, they said, the legal aspects of the U.S. government’s fight against terrorism will have a very real effect on the ability of the United States to persuade developing countries to adopt democratic concepts of the rule of law.

“The United States has an idealistic idea of its legal principles, and a large part of the world bought into it, and now [the world is] buying out of it,” Neate said. And in another speech, Lord Peter Goldsmith, attorney general of the United Kingdom, said, “My argument to you today is that maintaining a commitment to the rule of law is a key element in winning the war of values and thus in defeating the forces of extremism, of chaos and of terror.”

Symposium rapporteur Stephan Landsman expanded on those concerns when he presented his summary of the proceedings.

After the upheaval of World Wars I and II, society was at a “moral crossroads,” and “the world turned to law to save itself,” giving rise to a growing structure of international law and agreements such as the Geneva Conventions, said Landsman, a law professor at DePaul University. The United States was a leading advocate of that system, he said, “which gave it the moral high ground that helped it win the Cold War.”

In recent years, however, the U.S. government turned away from that system, “and the rule of law faltered, both here and around the world,” Landsman said. “And then came 9/11, and we are standing at another moral crossroads, when someone must step forward to point the direction. Who will it be? There is no doubt that it must be lawyers.” Speakers did not miss the coincidence that the symposium was held at the same time that the Bush administration and key Republican members of Congress were at odds over rules governing interrogations and trials of enemy combatants.

A few days after the symposium ended, a compromise was struck that broadly defines abusive treatment of detainees within the context of the Geneva Conventions of 1949 while authorizing the president to approve specific interrogation practices. The bill broadens the definition of enemy combatants and eliminates habeas corpus rights for some detainees. In setting rules for military tribunals to try suspected terrorists, the bill requires prosecutors to share summaries of classified information with defendants if they are used at trial, but prosecutors would have wider latitude to rely on hearsay evidence at trial.

The compromise legislation appeared headed for approval as Congress approached its pre-election recess in late September. But many expect the measure eventually to come under U.S. Supreme Court scrutiny.

In It for the Long Haul

On Sept. 27, ABA President Karen J. Mathis of Denver sent a letter to members of Congress expressing concerns about provisions of the compromise bill that also echoed themes sounded at the rule of law symposium.

“The United States has long served as the model for the world of a civilized society that effectively blends security and human liberty,” Mathis wrote. “When we refuse to observe the international standards for the treatment of detainees which we were so instrumental in developing, we provide encouragement for others around the world to do the same.”

In her letter, Mathis noted that the British government has adhered to fundamental justice principles in developing policies for dealing with suspected terrorists.

Goldsmith made the same point in his speech to the symposium. Among the principles that should not be compromised, he said, are prohibitions against torture and the right to a fair trial. Accordingly, the British government’s view is that “the prohibition on torture is simply nonnegotiable,” he said, and “we have rejected reducing the burden of proof for terrorism offenses and allowing secret evidence in terrorist trials.”

The challenge for governments, Goldsmith said, is to find a balance between the need to fight terrorism and the desire to preserve fundamental legal principles.

“I cannot agree with those civil libertarians who believe that 9/11 changed nothing and therefore no changes to our traditional ways of safeguarding fundamental values can be allowed,” Goldsmith said.

“But equally I do not share the view of those who assert that 9/11 changed everything, and therefore any changes are worth making if they might increase our security, whatever the impact on the fundamental values and liberties on which our societies are based,” he said. (No Bush administration officials involved in setting legal policy on terrorism attended the symposium.)

Mathis and Neate said the symposium is one step in a long-term process to identify what steps should be taken to move toward greater rule of law in the world. Mathis said the ABA will hold at least two follow-up conferences in 2007, and she expects that policy recommendations will go to the House of Delegates in August during the association’s annual meeting in San Francisco.

Rule of law issues should be a priority for all lawyers, Mathis said. “We all need to sponsor a movement to create the rule of law around the world,” she said.

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