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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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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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R2P: Asserting Theory is not = Law

Sunday, February 2nd, 2014

[by Mark Safranski, a.k.a. "zen"]

At The Bridge, Victor Allen pontificates on R2P (“Responsibility to Protect“) as if it were an established, cardinal point of international  law and not a pet theory of a few years vintage pushed by a small but politically connected clique of Western elite activists.

Strong State, Weak State:The New Sovereignty and 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. 

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.

Nor did the legal principle of non-interference in another sovereign state’s internal affairs ever mean carte blanche in diplomatic practice. 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. They could also choose to recognize insurgents in a neighboring state as lawful belligerents or even grant them diplomatic recognition as the legitimate government.

The rest of the piece continues on in this fashion.

This kind of breezy overselling of R2P, given the exceptionally slender diplomatic reeds on which it is based, is a cornerstone of R2P advocacy, usually for ill-considered or astrategic interventions motivated by “do something!”

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Bomb Syria?

Thursday, August 29th, 2013


[by Mark Safranski a.k.a. "zen"]

There is much ado about a prospective Western (i.e. American) aerial campaign to bomb the Iranian allied Alawite-Baathist dictatorship Syria over use of chemical weapons against primarily al Qaida allied Sunni Islamist extremist rebels.

To what end or how that end will be brought about by a surgical use of American air power, aided by token French and British contributions, well, no one is quite sure.

The driving insider force behind this astrategic call to arms are Susan Rice, Samantha Power and Anne-Marie Slaughter, the three Furies of R2P.  Slaughter writes on military intervention in Syria with her usual combination of moral certainty and operational magical thinking here. Rice angrily pontificates here while an unusually muted UN Ambassador Samantha Power just tweeted about it while on vacation from the emergency UN Security Council meeting on, uh, Syria.

The strategic argument about Syria is not about the normative qualities of the Assad regime, which is anti-American, brutal, terrorist supporting and fascistic. Or that the regime is committing atrocities. It is. It is about what political objective, if any, the use of military force against Syria can accomplish at what cost and with what probable outcomes. At a grand strategic level, there are also questions about how military intervention in Syria will impact great power relations and the shaping of international law.

I suspect many R2P advocates like Slaughter, Rice and Power are attracted to the idea of bombing Syria partly to garner a precedent to support doing similar things in the future, whether or not it has any positive effect on the Syrian civil war. That however, if true, is an extremely poor reason for military intervention anywhere. If bombing had some hope of changing the behavior of the Syrian regime or replacing it with something better, I would warm to the prospect but where is the evidence that is a likely outcome? Consider:

The Syrian rebels include armed groups as violent, lawless and squalid as the Assad regime. You know, the Beheading community of the third jihad international, with fringe support from the occasional cannibal commandos. If these Islamist lunatics come to power in Damascus they will cheerfully engage in ghastly pogroms of mass murder and torture that will make Assad’s goons look like the British Raj at tea time.

The Assad regime and the Alawite minority from whence it originates have their backs to the wall in a conflict that determines if they continue to rule Syria or are exterminated. Having no margin for maneuver or concession, America bombing them is irrelevant to whether in their calculus they can stop fighting their local enemies. The whole point of combining the threat of force with diplomacy – allegedly the reason given for bombing Syria – is to be able to make Assad an offer that he can’t refuse and not a threat that the Alawites can’t accept. Then, while blustering loudly and ominously we undercut our own bellicose posturing and announce that regime change was off the table. WTF?  Really?

The President should fire this unholy crew of incompetents and intellectual poseurs and hire some real foreign policy advisers with at least an undergraduate level grasp of how diplomacy, strategy and war have worked for the past 2000 years.

Failing that, a few poker players who can bluff without showing the entire table their cards.

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Syria is Not Rwanda

Monday, April 29th, 2013

Anne-Marie Slaughter had a short but bombastic WaPo op-ed on Syria and chemical weapons use that requires comment:

Obama should remember Rwanda as he weighs action in Syria 

….The Clinton administration did not want to acknowledge that genocide was taking place in Rwanda because the United States would have been legally bound by the Genocide Convention of 1948 to intervene to stop the killing. The reason the Obama administration does not want to recognize that chemical weapons are being used in Syria is because Obama warned the Syrian regime clearly and sharply in August against using such weapons. “There would be enormous consequences if we start seeing movement on the chemical-weapons front or the use of chemical weapons,” he said. “That would change my calculations significantly.”

….But the White House must recognize that the game has already changed. U.S. credibility is on the line. For all the temptation to hide behind the decision to invade Iraq based on faulty intelligence about weapons of mass destruction, Obama must realize the tremendous damage he will do to the United States and to his legacy if he fails to act. He should understand the deep and lasting damage done when the gap between words and deeds becomes too great to ignore, when those who wield power are exposed as not saying what they mean or meaning what they say.

This is remarkably poorly reasoned advice from Dr. Slaughter that hopefully, President Obama will continue to ignore.
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The President, on the basis of advice very much in the spirit of this op-ed, drew a public “red-line” about chemical weapons use for Bashar Assad, or some variation of that, on six occasions, personally and through intermediaries. On the narrow point, Slaughter is correct that this action was ill-considered, in that the President wisely does not seem to have much of an appetite for jumping into the Syrian conflict. Bluffing needlessly is not a good practice in foreign policy simply to pacify domestic critics, but it is something presidents do from time to time. Maybe the POTUS arguably needs better foreign policy advisers, but doubling down by following through with some kind (Slaughter fails to specify) military intervention in Syria is not supported in this op-ed by anything beyond mere rhetoric.
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First, as bad as the Syrian civil war is in terms of casualties it does not remotely approximate the Rwandan Genocide in scale, moral clarity, military dynamics or characteristics of the major actors. This is a terrible analogy designed primarily to appeal to emotion in the uninformed. Syria is engaged in civil war, not genocide.
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Secondly, the “credibility” argument has been lifted by Slaughter from it’s Cold War historical context where the United States capacity to provide a nuclear umbrella and effective deterrent for allied states was tied to the perception of our political will to assume the appropriate risks, which in turn would help avoid escalation of any given conflict to WWIII. This psychological-political variable of “credibility” soon migrated from the realm of direct US-Soviet nuclear confrontation in Europe to all manner of minor disputes (ex. -Quemoy and Matsu, civil unrest in the Dominican Republic) and proxy wars. It was often misapplied in these circumstances and “credibility” assumed a much greater exigency in the minds of American statesmen than it it did in our Soviet adversaries or even our allies, to the point where American statecraft at the highest level was paralyzed by groupthink in dealing with the war in Vietnam. By 1968, even the French thought we were mad.
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Absent the superpower rivalry that kept the world near the brink of global thermonuclear war, “credibility” as understood by Johnson, Rusk, Nixon and Kissinger loses much of it’s impetus. If “credibility” is the only reason for significant US intervention in Syria it is being offered because there are no good, hardheaded, reasons based on interest that can pass a laugh test.
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The historical examples President Obama should heed in contemplating American intervention in Syria is not Rwanda, but Lebanon and Iraq.
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