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Pavers of Roads with Good Intentions: R2P Debate Rising Part II.

Tuesday, February 18th, 2014

As I mentioned previously, I needed to make a more substantive reply to Victor Allen’s claims for R2P.  I am very tardy in doing so, for which I apologize to Mr. Allen but better late than not at all. While addressing some of Victor’s specific points, I want to be very clear that in my view:

1. R2P’s status in international law, despite grandiose claims by advocates, is weakly grounded, highly controversial and conflicts with accepted norms of state sovereignty

2.  The concept of R2P is a covert revival of the pre-WWI sovereign right to  wage aggressive war, albeit (usually) under some kind of collective imprimatur

3,  If regarded as a serious legal moral principle entailing an obligation to act, R2P is inherently anti-strategic, injurious to national interest and anti-democratic in nature

I will tackle point #1 today and points # 2 and #3 in successive posts.

In Victor’s original piece he argued that R2P is part and parcel of a (theoretical) “new sovereignty”:

That R2P does not violate sovereignty stems from the evolution of sovereignty from its Westphalian form in the mid 17th century to the “sovereignty as responsibility” concept advanced by Deng, et al. Modern sovereignty can no longer be held to give states carte blanche in their internal affairs regardless of the level of suffering going on within their borders. This does not diminish state agency for internal affairs, but rather holds them responsible and accountable for their action and inaction regarding the welfare of their populations. 

“Sovereignty as responsibility”  is a theory put forth by a Sudanese diplomat and minor UN bureaucrat and an American academic that proclaimed:

The authors assert that sovereignty can no longer be seen as a protection against interference, but as a charge of responsibility where the state is accountable to both domestic and external constituencies.

The “…and external constituencies” clause is an Orwellian negation of the traditional meaning of sovereignty where the state has sole de jure authority over such matters as their internal affairs, including the political character of their regime,  with very narrow exceptions mandated by treaty or customary international law ( ex. diplomatic immunity of heads of state).  The latter, is based on consent and derives from the history of the diplomatic norms adhered to, interpreted and practiced by sovereigns and such rulings of IGO to whose authority sovereigns have voluntarily submitted themselves through a binding covenant ( ex. World Court via the UN charter).

Of course, being sovereign, states differ on how such rulings are to be interpreted or even whether they will accept jurisdiction of bodies  like the World Court, the ICC or special international  tribunals of justice in specific cases. Furthermore, in signing covenants, states often, quite legally, make reservations or exceptions to specific treaty clauses as part of their agreement to adhere to the rest of the treaty and consider it legally binding.  The United States in fact, does this regularly as do most other states having major interests at stake in negotiating an international agreement. Unless you have a granular knowledge of what country “x” formally agreed to accept as a signatory, or are willing to do your homework in this regard, you do not actually know what the law really is in many diplomatic disputes – especially when the conflict is complex and multilateral.  Broad and bombastic assertions by activists in the media that novel restrictions or obligations on states that they support are “international law” or that some act they condemn is “illegal” are almost invariably factually incorrect, at least to some degree ( barring obvious and clear violations of jus cogens, such as mass atrocities).

Beyond international law based on formal covenants, custom and legal precedents generally accepted by sovereigns, other sources of authority in international law would include resolutions of the UN Security Council, the UN General Assembly, regional bodies like the OAS or EU, some institutions like the ICRC and even the opinions of scholars learned in international law. Unlike positive law within a state, international law in its various manifestations lacks a legitimate, overarching, coercive authority that could function as a global sovereign and impartial enforcer of consistently interpreted law and justice. Sovereign states are thus not subject to international law in the same relationship that their citizens are subject to sovereign authority; sovereign states are, at least legally, a community of equals able to draw upon and interpret overlapping and at times competing sources of legal authority in making claims – including precedents they intentionally created themselves!  This makes a quick redress of violations of international law difficult when the UN Security Council is empowered to make use of military force only in cases of ” international peace and security” (i.e. aggression) and the UN Charter also assures sovereigns of their “right to self defense”.

“New Sovereignty”, in the title of Victor’s first piece, is a concept propagated by the late Harvard theorist and State Department official Abram Chayes and his wife, scholar Antonia Handler Chayes, that repudiates much of traditional sovereignty in order to aggressively re-define it as “ the capacity to participate in international institutions of all types“.  In other words, sovereignty in their view would mean a state’s membership in good standing in  a mutually interdependent ” international community” and not control over national territory free from external interference by other sovereigns. Under “New Sovereignty”, such external interference is assumed as “normal” and is a point of constant, cooperative, negotiation toward consensus on emerging and evolving legal norms. As such, if accepted, “New Sovereignty” would be a massive transfer of political power and legal authority from legitimate national governments to a transnational and international class of legal technocrats and bureaucrats, who would assume by default a managerial role over the substance of international affairs. In many ways this erosion of traditional state sovereignty would be analogous to the transfer of real power from the hands of crowned sovereigns in the early modern period to their embryonic state bureaucracies that in time rendered most monarchs mere ceremonial figureheads.

In my view, while  Chayes had many laudable goals in mind,  “New Sovereignty” would be unworkable in practice and inherently is extremely reactionary in its anti-democratic repudiation of popular sovereignty as the basis for a state’s legitimacy. Citizens of states are effectively reduced to the position of wards under the protection of the international community as national leaders become responsive primarily to “external constituencies” in control of the eternal process of negotiation of international norms. While the problem is somewhat moot for repressive regimes whose citizens enjoy few freedoms anyway, in liberal states the “democratic deficit” produced by such a scheme runs contrary to the very foundations of their political legitimacy and independence.

In this context, we have the claim put forth for the legal basis of R2P by Victor:

 ….Indeed, the UN Security Council, having enshrined R2P in UNSCR 1674, did not subsequently authorize action under the R2P banner in the aftermath of Cyclone Nargis in Burma, with the Special Adviser to the Secretary-General stating in his report that

[i]t would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar…the Outcome Document of the 2005 [World] Summit limited their application to four crimes and violations: genocide, crimes against humanity, war crimes and ethnic cleansing.

and in his second post:

Here Safranski and I agree on the proper role of theorists, but it wasn’t theorists that adopted R2P as a norm; it was the UN Security Council, as set forth in UNSCR 1674 in 2005, which was later utilized in the Libya intervention authorization (UNSCR 1973). Currently there are no higher authorities on interventions, peacemaking, and peacekeeping than the Security Council, which is surely not composed of academic theorists, but rather high-level diplomats that make moves, and yes, establish law, only on the explicit authorization of their countries. That the Security Council adopted the principles of R2P speaks more to the usefulness and applicability of the concepts than to any academic theorizing thereof.

First, while we should acknowledge that the UNSC resolutions that R2P advocates crow about are not nothing, their importance should not be exaggerated either. They are a precedent, but a very limited one that does not abrogate everything that has come before.

Since the inception of the UN the Security Council has passed over 2200 resolutions, which would put those devoted to R2P at a whopping .0009 %.  Moreover, of the UNSC resolutions passed, many merely take note of an event, express concern or urge restraint; other, more forcefully worded resolutions, dealing with conflict were dead letters from the moment of adoption, being ignored by warring parties exercising their sovereign rights of self-defense. The number of UNSC resolutions that led to effective action of any kind, much less decisive humanitarian military intervention envisioned by more muscular interpretations of R2P, have been few with a mixed track record of success.  Resolutions 1674 and 1973 by the Security Council exist within the much larger context of international law precedents going back centuries, most of which directly contradict the operative assumptions of “New Sovereignty”.

Furthermore, much of the text of Resolution 1674 itself is devoted to caveats reiterating traditional sovereign prerogatives and that protection for civilians occur under established conventions for the law of armed conflict before gingerly endorsing R2P provisions from the 2005 World Summit Outcome Document  of the World Health Organization. The legality of these qualifications and reservations are taken seriously by the member states of the Security Council because without them, 1674 would have never passed, nor 1973 after it ( likely to be the last of its kind for a long while in light of Russian and Chinese vetoes on Syria resolutions, which after Libya are certain to continue).  At best, in international law R2P has managed to secure only a toehold and its definition and application lack agreement (and even acceptance) among the world’s great powers.

R2P is not a secure legal scaffold on which to construct a foreign policy or decide on matters of peace and war.

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Adding to the Bookpile

Sunday, February 9th, 2014

[by Mark Safranski, a.k.a. “zen“]
  

Cultures of War: Pearl Harbor / Hiroshima / 9-11 / Iraq by John Dower 

Berlin Diary: The Journal of a Foreign Correspondent, 1934-1941 by William Shirer

Moral Combat: Good and Evil in World War II by Michael Burleigh 

Picked up a few more books for the antilibrary.

Dower is best known for his prizewinning Embracing Defeat: Japan in the Wake of World War II, which unfortunately, I have never read.  Berlin Diaries I have previously skimmed through for research purposes but I did not own a copy. Shirer’s The Rise and Fall of the Third Reich: A History of Nazi Germany was an immensely bestselling book which nearly everyone interested in WWII reads at some point in time. I would put in a good word for Shirer’s lesser known The Collapse of the Third Republic: An Inquiry into the Fall of France in 1940 . It was a very readable introduction to the deep political schisms of France during the interwar and Vichy years which ( as I am not focused on French history) later made reading Ian Ousby’s Occupation: The Ordeal of France 1940-1944 more profitable.

I am a fan of the vigorous prose of British historian Michael Burleigh, having previously reviewed  Blood and Rage: A Cultural History of Terrorism here and can give a strong recommendation for his The Third Reich: A New History.  Burleigh here is tackling moral choices in war and also conflict at what Colonel John Boyd termed “the moral level of war” in a scenario containing the greatest moral extremes in human history, the Second World War.

The more I try to read, the further behind I fall!

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R2P Debate Rising ( Part I.)

Friday, February 7th, 2014

I thought I would call the attention of the readership to a debate that has been ricocheting around different social media platforms on R2P (Responsibility to Protect“). I have dealt with the topic several times in the past, related to the ideas of Anne-Marie Slaughter, but not much recently until Victor Allen, over at The Bridge, put up an enthusiastic post:

Strong State, Weak State: The New Sovereignty and the Responsibility to Protect

The Responsibility to Protect doctrine represents a leap forward in accountability for states and does not infringe upon their sovereignty, as states are no longer held to be completely self-contained entities with absolute power over their populations. Rather, there is a strictly defined corpus of actions that begin the R2P process?—?a process that has different levels of corrective action undertaken by the international community in order to persuade, cajole and finally coerce states into actively taking steps to prevent atrocities from occurring within their boundaries. That R2P does not violate sovereignty stems from the evolution of sovereignty from its Westphalian form in the mid 17th century to the “sovereignty as responsibility” concept advanced by Deng, et al. Modern sovereignty can no longer be held to give states carte blanche in their internal affairs regardless of the level of suffering going on within their borders. This does not diminish state agency for internal affairs, but rather holds them responsible and accountable for their action and inaction regarding the welfare of their populations…

Victor’s post deserves to be read in full.

I did not agree with Victor’s framing of the legal character of state sovereignty, to put it mildly, nor his normative assessment of R2P.  Mr. Allen also described R2P somewhat differently than I have seen from other advocates, but I was less concerned by that as the concept does not seem to be presented with consistency by the community of  R2P advocates and theorists. Having seen similar theoretical debates over the years about angels dancing on pins over 4GW, constructivism, EBO, Network-centric Warfare, OODA,  Clausewitz’s remarkable trinity,  nuclear deterrence, preemptive war, COIN,  neoconservatism, free market economics, the agrarian origin of capitalism in England, Marxist theory etc. I am not too worried if Victor’s interpretation in its specifics is not ideologically perfect. It is representative enough.

I responded to Allen’s post somewhat crankily and with too much brevity:

R2P: Asserting Theory is not = Law 

….As far as premises go, the first point is highly debatable; the second is formally disputed by *many* states, including Russia and China, great powers which are permanent members of the UN Security Council; and the third bears no relation to whether a military intervention is a violation of sovereignty or not. I am not a self-contained entity either, that does not mean you get to forcibly enter my house.

That R2P does not violate sovereignty stems from the evolution of sovereignty from its Westphalian form in the mid 17th century to the “sovereignty as responsibility” concept advanced by Deng, et al. Modern sovereignty can no longer be held to give states carte blanche in their internal affairs regardless of the level of suffering going on within their borders.

Academic theorists do not have the authority to override sovereign powers (!) constituted as legitimized, recognized, states and write their theories into international law – as if an international covenant like the Geneva Convention had just been contracted. Even persuading red haired activist cronies of the American president and State Department bureaucrats to recite your arguments at White House press conferences does not make them “international law” either – it makes them “policy” – and that only of a particular administration. 

This riff  set off something of a reaction on Facebook in private groups and on Twitter as Mr. Allen, who I am sure is a fine gent, has a large set of common colleagues with me, some of whom are Boydians and all of whom are sharp strategic thinkers. Consequently,  Victor’s post(s) as well as mine and a later follow up by a “Leonidas Musashi” ( great nom de guerre)  made it into a high caliber defense forum as well as other sites online. My spleen-venting provoked the following rebuttal at The Bridge:

R2P: A Spectrum of Responses 

….Safranski’s final point about sovereignty as carte blanche seems to be a stealth argument for the principles of R2P:

States always could and did take military action in self-defense when disorders in neighboring states threatened their security or spilled over their border outright.R2P seeks to minimize harm caused by disorder through early action taken prior to conflicts spilling over borders that can potentially cause larger conflagrations, but more importantly, it recognizes that atrocities can happen entirely within the confines of a state, and that the international community will not allow them to continue unchecked. This recognition is easily seen in the rhetoric and discussions regarding rebels in both Libya and Syria. Libya is admittedly a flawed example of the use of R2P, with second-order effects seen in the Russian and Chinese opposition to UN-sanctioned stabilization operations in Syria, but that concern for the population first and the state second were common facets to both bear mentioning in the debate and illustrate the shifting nature of intervention and sovereignty. This shift is exemplified in the contrast between discussions in the UN General Assembly regarding Kosovo/East Timor and Syria: “most of the 118 states that mentioned Syria at the UN General Assembly in 2012 expressed concern about the population, up from less than a third who invoked Kosovo and East Timor in 1999… It is clear that a fundamental shift has taken place regarding humanitarian intervention and that more and more states embrace the broad values expressed by R2P.” (“Democracy, Human Rights, and the Emerging Global Order: Workshop Summary,” Brookings Institution, 2012)

Again, I caution about reading posts in full.

Here in this rebuttal Victor doubled down, which I admire because that is interesting, but with which I agree with even less because he seems to be far removed from how the world really works in terms of international relations, not merely in practice, but also in theory as well.  That said, his response deserves a much more serious reply than my first post evinced. I have been fiddling with one ( I seem to be moving slowly these days) but another voice – “Leonidas Musashi” – has entered the debate at The Bridge with a sharp retort against Allen’s conception of R2P:

Responsibility to Protect: Rhetoric and Reality 

….My main observation, however, is that the discussion thus far has been focused more on a “right” to protect than a “responsibility” to do so. The arguments indicate that a state has a responsibility to protect its people but takes for granted that third parties somehow inherit this responsibility when the state cannot fulfill it. There is a missing explanation here. The need to justify such efforts may seem callous, but a nation’s highest moral order is to serve its own citizens first. Such an explanation would certainly be a legitimate demand for a mother that loses a son who volunteered to defend his nation, or for a government entrusted by its people to use their resources to their own benefit. While it is often stated that the international community “should” intervene, explanation of where this imperative comes from is not addressed other than by vague references to modern states being interconnected. But this implies, as previously stated, a right based on the self-interest of states, firmly grounded in realistic security concerns, rather than any inherent humanitarian responsibility to intervene. Instability and potential spillover may very well make it within a nation’s vital interests to intervene in another country and pursuing humanitarian and human rights goals within the borders of another state may well be in a nation’s secondary interests. But if this is the case, the calculus of the political leadership will determine if pursuing this goal is worth the cost/potential costs – as has been done in such cases as North Korea, Iran, Zimbabwe, Tibet and Syria. In either case, the decision is determined by what is in the nation’s interests, a reality that makes R2P not a mandate, but a merely a post hoc justification for interventions that do occur.

Leonidas makes many good points, in my view, but the intellectual fungibility of R2P as a concept, its elastic and ever evolving capacity to serve as a pretext for any situation at hand is the most important, because it is potentially most destabilizing and threatening to other great powers with which the United States has to share the globe. In short, with great responsibilities come greater costs.

In part II. I will lay out a more methodical case on the intellectual phantom that is R2P.

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Book Review: Hitlerland by Andrew Nagorski

Sunday, February 2nd, 2014

[by Mark Safranski, a.k.a. “zen“]

Hitlerland by Andrew Nagorski 

Recent cyber problems here at ZP (as well as work commitments) have left me with an enormous backlog of book-related posts and reviews with which to wade through this month, including re-starting the aborted “friends of zenpundit.com who wrote books” posts.  Here is the first of what hopefully should be many posts to help readers add to their antilibrary:
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I recently picked up Hitlerland: American Eyewitnesses to the Nazi Rise to Power by journalist Andrew Nagorski and found it to be an enjoyable read. Nagorski is telling the tale of Americans in Germany, predominantly journalists and diplomats, who witnessed the death of the Weimar Republic  at the hands of the Nazis and the subsequent construction of the totalitarian Third Reich under the messianic leadership of Adolf Hitler. It is, to be sure, a cautionary tale that is well-known at a superficial level where “Munich” – the 1938 diplomatic agreement where British and French leaders surrendered Czechoslovakia to Hitler’s aggressive designs – is a shorthand today for ill-considered appeasement of dictatorial regimes.

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That said, the deep reluctance of American officials and the public back home to acknowledge intellectually the nature of Nazi Germany and the threat it represented at the time, to the frustration of reporters like William Shirer, is less familiar and too often acknowledged only sheepishly – perhaps because the same “see no evil” pattern was replicated in regard to Stalin’s Russia until well after WWII ended. Indeed, one of the book’s more pathetic figures, Martha Dodd,  the irresponsible party-girl daughter of the American ambassador, transitioned seamlessly from being an enthusiastic useful idiot for Nazism to a slavishly loyal Stalinist and lifelong Soviet agent. A phenomena that mirrored that of many young German men who in the latter years of the Weimar Republic found themselves shifting between Communist fighting groups and membership in the Nazi SA without any democratic or liberal waystation in between.

Some thoughts about Hitlerland in no particular order:

  • Nagorski, like most journalists, is an excellent writer and more skilled at weaving a story than are most historians. Hitlerland is extremely “readable” for the general layman who is the target audience of the author.
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  • If you are well read enough on the subject of the Third Reich to be familiar with Nagorski’s major primary sources you will not see much that is original here as the same texts have been relied upon very heavily by many other writers and historians of the Nazi period. I learned only a few details or anecdotes that were new to me. What Nagorski did that is new is to bring together the stories of the Americans in Germany into one book for a synthesis and explained it smoothly and concisely.
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  • One of the more famous of the primary sources, Dr. Ernst “Putzi” Hanfstaengl, who wrote a memoir about Hitler and was a very early (if minor) member of the Nazi Party leadership, a P.R. mentor and court jester of sorts to Adolf Hitler, is given close scrutiny. Nagorski brings out the more sinister and machiavellian side of Hanfstaengl, whose ability to charm and play the clown and his influential Harvard connections helped him escape any kind of punishment for his numerous contributions toward Hitler’s regime.
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  • The inescapability of street level Nazi brutality, the crude and fanatical anti-semitism and the increasing enthusiasm of the German people, even relative anti-Nazi Germans, for accepting the regime’s propaganda claims with credulity after years of being submerged in them is an excellent feature of Hitlerland. Propaganda does damage simply by crowding out truth, even when it is not believed.

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Recommended.

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Thoughts on CNAS “Preparing for War in the Robotic Age”

Friday, January 24th, 2014

[by Mark Safranski, a.k.a. “zen“]

My reading at CNAS, which had once been frequent, declined with the waning of the Abu Muqawama blog. While formerly I usually scanned through CNAS reports on a regular basis after reading what Exum and his commenters had to say, toward the end I only visited when Adam and Dan had new posts up.

At the gentle nudging of Frank Hoffman, I decided to read the latest CNAS product;  I’m pleased to say with the release of ” 20YY:Preparing for War in the Robotic Age by Robert Work ( CNAS CEO and former Undersecretary of the Navy) and Shawn Brimley (CNAS Executive V.P. and former NSC Strategic Planning Director) CNAS has rolled out an intellectually provocative analysis on an important emerging aspect of modern warfare.

Work and Brimley have done a number of things well and did them concisely (only 36 pages) in “20YY”:

  • A readable summary of the technological evolution of modern warfare in the past half century while distinguishing between military revolutions,  military-technical revolution and the the 80’s-90’s  American “revolution in military affairs“.
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  • A more specific drill-down on the history of guided munitions and their game-changing importance on the relationship between offense and defense that flourished after the Gulf War. 
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  • An argument that the proliferation of technology and information power into the hands unfriendly states and non-state actors is altering the strategic environment for the United States, writing:
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  • “Meanwhile in the 13 years since the last 20XX game, foreign nation-state C41, surveillance and reconaissance systems, and guided munitions-battle network capabilities have become increasingly capable.  Indeed, these systems now form the very robust and advanced “anti-access and area denial”  (A2/AD) capabilities envisioned in the 20XX game series. The effect has been that the dominance enjoyed by the United States in the late 1990’s/2000’s in the area of high end sensors, guided weaponry, space and cyberspace systems and stealth technology has started to erode. Moreover the erosion is now occurring at an accelerated rate.”
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  • Positing the near-future global proliferation of unmanned, autonomous, networked and swarmed robotic systems replacing( and leveraged by diminishing numbers of) expensive manpower and piloted platforms on the battlefield and altering the age-old relationship between a nation’s population base and the traditional calculation of its potential military power.
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  • An argument that “warfare in the robotic age” will mean substantial to fundamental shifts in strategic calculation of deterrence, coercion, the use of force, operational doctrines and the evolution of military technology and that the United States must prepare for this eventuality.

This report is well worth reading.  In my view there are some areas that require further exploration and debate than can be found in “20YY”. For example:

  • While the power of economics as a driver of unmanned, autonomous weapons is present, the implications are vastly understated. Every nation will face strategic investment choices between opting for simple and cheaper robotic platforms in mass and “pricing out” potential rivals by opting for “class” – fewer but more powerful, sophisticated and versatile robotic systems.
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  • The scale of robot swarms are limited primarily by computing power and cost of manufactureand could be composed of robots from the size of a fly to that of a zeppelin. As John Robb has noted, this could mean billions of drones.
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  • The US defense acquisition system and the armed services are ill-suited for fast and inexpensive introduction of robotic warfare technology – particularly if they threaten to displace profitable legacy platforms – as was demonstrated by the CIA rather than the USAF taking the lead on building a drone fleet.  Once foreign states reach parity, they may soon exceed us technologically in this area. A future presidential candidate may someday warn of  a growing ” robot gap” with China.
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  • Reliance on robotic systems as the center of gravity of your military power carries a terrific risk if effective countermeasures suddenly render them useless at the worst possible time (“Our…our drone swarm….they’ve turned around…they are attacking our own troops….Aaaaahhhh!”)
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  • The use of robotic systems to indiscriminately and autonomously kill is virtually inevitable much like terrorism is inevitable. As with WMD, the weaker the enemy, the less moral scruple they are likely to have in employing lethal robotic technology.
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  • For that matter, the use of robotic systems by an authoritarian state against its own citizens to suppress insurgency, peaceful protest or engage in genocide against minority groups is also highly probable. Is there much doubt how the Kim Family regime in north Korea or Assad in Syria would make use of an army of “killer robots” if they feel their hold on power was threatened?
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  • International Law is not currently configured for genuinely autonomous weapons with Ai operating systems. Most of the theorists and certainly the activists on the subject of  “killer robots” are more interested in waging lawfare exclusively against American possession and use of such weapons than in stopping their proliferation to authoritarian regimes or contracting realistic covenants as to their use.

All in all “20YY:Preparing for War in the Robotic Age provides much food for thought.

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