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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.

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.

President Barack Obama has established by an executive order an Atrocity Prevention Board.  After the 120 day study and planning period (which will determine the writ of the APB), the board will be chaired by Samantha Power, a senior White House foreign policy adviser, NSC staffer and an aggressive advocate of R2P .

This is not likely to end well.

Presidential boards, commissions, study groups and other executive branch bodies are political agendas that power has made into bureaucratic flesh. Some, like the Warren Commission or the Iraq Study Group were transient for an instrumental purpose; others, like the Defense Policy Board put down roots and become real institutions. Some are killed for partisan reasons by new administrations (as Rumsfeld did to DACOWITS by letting it’s charter expire and then remolding it) or from congressional pique (this terminated the Public Diplomacy Commission) while some linger on for decades in zombie status, politically irrelevant but still animate, due to the inertia of bureaucracy.

What is interesting about these various bodies is that without the statutory powers granted to agencies created by legislation, they are merely empty shells unless filled with influential figures with clout or blessed by the patronage of high officials. If this is the case, even very obscure bodies can be platforms for impressive political action. Creepy and cloying old Joe Kennedy parlayed a minor post on a maritime commission and his vast fortune to become successively FDR’s SEC Chairman and the Ambassador to the Court of St. James, where he dispensed bad geopolitical advice and pushed the future careers of his sons, netting a president and two senators. The role of the Defense Policy Board in the run-up to the Iraq War is well known and I am told that one can even launch a constellation of careers and a powerhouse think tank from something as mundane and thankless as writing a COIN manual 😉

It is safe to say that the new Atrocity Prevention Board is not going to be window decoration.

Many people who are seeing what I am seeing in this move are now uneasily prefacing their critical comments with “Well, who can be against stopping atrocities, right?”. Let me say with complete candor: I can. The Atrocity Prevention Board is a great sounding  bad idea that represents an impossible task in terms of Ways, unaffordable in terms of Means and unacheivable in relation to Ends. Worse, by holding the national security community hostage to the serendipity of governmental cruelty on a global scale, the intelligent pursuit of national interests are effectively foreclosed  and the initiative ceded to random, unconnected,  events. This worst kind of institutionalized crisis management time horizon also comes weighted with implicit theoretical assumptions about the end of national sovereignty that would, I expect, surprise most Americans and which we will soon regret embracing.

Given the ambitions and missionary zeal of some R2P advocates and their ADHD approach to military intervention, it is unsurprising that this new entity was not titled “The Genocide Prevention Board”. Genocide, which the United States has definitive treaty obligations to recognize and seek to curtail, is too narrowly defined and too rare an event for such a purpose. “Atrocities” can be almost any scale of lethal violence and could possibly include “non-lethal” violence as well. This is a bureaucratic brief for global micromanagement by the United States that makes the Bush Doctrine appear isolationist and parsimonious in comparison.

A while back, while commenting on R2P, I wrote:

…As Containment required an NSC-68 to put policy flesh on the bones of doctrine, R2P will require the imposition of policy mechanisms that will change the political community of the United States, moving it away from democratic accountability to the electorate toward “legal”, administrative, accountability under international law; a process of harmonizing US policies to an amorphous, transnational, elite consensus, manifested in supranational and international bodies. Or decided privately and quietly, ratifying decisions later as a mere formality in a rubber-stamping process that is opaque to everyone outside of the ruling group.

The president is entitled to arrange the deck chairs as he sees fit, and in truth, this anti-strategic agenda can be executed just as easily through the NSC or offices in the West Wing, but the creation of a formal board is the first step to institutionalizing and “operationalizing a R2P foreign policy” under the cover of emotionalist stagecraft and networking machinations. A doctrine of which the American electorate is generally unaware and the Congress would not support legislatively (if there was a hope in Hell of passage, the administration would have submitted a wish-list bill).

This will not be a matter of just going abroad looking for monsters to slay but of a policy machine that can spew out straw monsters at need even when they don’t exist.

ADDENDUM:

What others are saying about the APB:

Foreign Policy (Walt) –Is the ‘Atrocity Prevention Board‘ a good idea?

Duck of Minerva (Western) –Institutionalizing Atrocity Prevention 

[ by Charles Cameron — LRA, Muslim influence, biblical literalism, Machine Gun Preacher, the biker and the nun ]

.

There is much to be said about Joseph Kony and the Lord’s Resistance Army, and I intend to write about the importance of a worldview imbued with magic — both in driving the LRA’s ferocious violence, and in providing subsequent healing for the victims and absolution and reconciliation for the perpetrators — in an upcoming post.  But there are a few things I want to have dealt with first — to clear the decks, so to speak.

Here, I want to mention three points briefly: (a) confirmation of a possible Muslim connection, or perhaps merely syncretism, in the LRA; (b) a fiercely literal form of biblical interpretation; and (c) the question of the “Christian Rambo”.

1.

In my recent post on the topic, I quoted Maya Deighton‘s DFID report about Kony’s “much-proclaimed conversion to Islam”.

My friend Jim Lai very kindly pointed me to another and richer datum on the topic. It comes from the 1997 Human Rights Watch report, THE SCARS OF DEATH: Children Abducted by the Lord’s Resistance Army in Uganda:

There is, of course, an apparent irony in Sudan’s support for the Lord’s Resistance Army: the Sudanese government is militantly Islamic, while the Lord’s Resistance Army is at least ostensibly Christian. But over time, it seems clear that the beliefs and practices of Kony and his followers have changed: in 1987, Kony’s group was closely identified with Alice Lakwena, and like Lakwena, Kony appears to have enjoyed substantial popular support among the Acholi. Huge crowds would gather to hear him preach. By May 1997, when we conducted most of our interviews, the testimony of the children we met suggested that many of the rituals common in Lakwena’s time had been abandoned or were only sporadically followed. Many children also reported rebel practices that appear to have been adopted from Islam: for instance, the rebels pray while facing Mecca, respect Friday as a holy day, and forbid the keeping of pigs.

The New York Times published LTC Richard Skow’s highly informative notes on the LRA, and these included (page 9) more than one injunction with a specifically Christian orientation, and at least one that seems to fit more closely with the Muslim model: “Wounded personnel are administered three sips of water mixed with shea butter oil – one sip for each of the trinity” (cf. Christian baptismal doctrine and Matthew 28.19) and “Before prayer they must wash at least their hands, feet and face” (cf Muslim wudu (ablutions) before prayer, and Qur’an 5.6).

As Jim points out, what’s being described here may best be described as syncretism rather than Islam.

So while I don’t think that paragraph by any means proves that the LRA is a “Muslim” organization, it certainly makes Limbaugh‘s portrayal of the LRA as “Christians … fighting the Muslims” – not to mention his headline, Obama Invades Uganda, Targets Christians — look even more clueless.

Thanks, Jim.

2.

My second point has to do with Biblical interpretation of the most literal sort.

Mark 9.43- 47 reads:

And if thy hand offend thee, cut it off: it is better for thee to enter into life maimed, than having two hands to go into hell, into the fire that never shall be quenched: Where their worm dieth not, and the fire is not quenched. And if thy foot offend thee, cut it off: it is better for thee to enter halt into life, than having two feet to be cast into hell, into the fire that never shall be quenched: Where their worm dieth not, and the fire is not quenched. And if thine eye offend thee, pluck it out: it is better for thee to enter into the kingdom of God with one eye, than having two eyes to be cast into hell fire.

There are, I imagine, more than a few Christian men who have looked on a woman to lust after her, and have therefore presumably committed adultery with her already in their hearts (see Matthew 5.28), but who have not seen fit to pluck out their eyes as a result. There are many modes of Biblical interpretation, and the application of Mark 9 to Matthew 5 in a literal sense does not appear to have been a popular one.

Joseph Kony, on the other hand, not only refers to that passage in Mark, he appears to suggest that one might need to apply it to others, not just oneself.

Mr. Kony tells his followers that he is in direct contact with God, and that God says it is right to kill in the cause of toppling Mr. Museveni’s evil government, which is accused of hostility toward the country’s north. (The government’s sins, however, remain unstated.)

In 1988, when the government tried to train villagers in self-defense, Mr. Kony was quoted as saying: “If you pick up an arrow against us and we ended up cutting off the hand you used, who is to blame? You report us with your mouth, and we cut off your lips. Who is to blame? It is you! The Bible says that if your hand, eye or mouth is at fault, it should be cut off.” The rebels began cutting off the lips, hands, noses and breasts of civilians, intending that their victims survive as constant warnings to others.

I don’t have access to Els De Temmerman‘s book about the LRA, Aboke Girls: Children Abducted in northern Uganda, but she quotes that passage from St Mark, and apparently confirms that Kony has used it. As one of her readers reports:

One of the commandments LRA leader Joseph Kony enforces is from St Mark 9, 43, 45, and 47: And if thine hand offend thee, cut it off … and if thine foot offend the, cut it off … and if thine eye offend thee, pluck it out…

If the army ran into villagers riding a bike, they would cut their legs off. If the new rebel recruits could not watch the beating and killing of their classmates, families, or friends, they would pluck their eyes out.

I don’t believe even Origen would have gone that far.

3.

Lastly, I’m obliged to Richard Bartholomew of Bartholomew’s Notes for pointing me to Mark Moring‘s article in Christianity Today, which describes in some detail the claims made by Rev. Sam Childers – hero of the recently released film, Machine Gun Preacher – concerning his own efforts on behalf of children and against Kony and the RLA:

The 49-year-old Childers is a former biker and gang member who found God as a young man and felt called to help orphans in Sudan, where he has been working off and on for more than a decade. Machine Gun Preacher, starring Gerard Butler in the lead role, has received positive buzz at screenings and film festivals, but CT has learned that some of its depictions — as well as some of Childers’s claims in his 2009 autobiography — are untrue.

Childers is known as the “Machine Gun Preacher” because he says he fights, often with an AK-47 assault rifle, against the infamous guerrilla leader Joseph Kony and the rogue Lord’s Resistance Army (LRA), whose war crimes have left thousands of African children orphaned. In his 2009 book, Another Man’s War: The True Story of One Man’s Battle to Save Children in the Sudan (Thomas Nelson), Childers writes that he has “rescued more than 900 refugees of all ages. More than half of them were children who had been captured by the Lord’s Resistance Army.” He founded a group called Angels of East Africa, and he writes of “leading a rescue with an AK in my hands and a pistol on each hip.” He claims to have fought alongside the Sudan People’s Liberation Army (SPLA) to liberate many of these children-and the movie depicts as much.

But an officer in the SPLA denies any association with Childers, and has asked Childers to stop “staining our names.” According to a letter obtained by CT dated April 8, 2011, Lieutenant General Obuto Mamur Mete told Childers that he had become “a problem,” and urged him to stop “using the names of our authorities, me in particular, to manipulate your wrongdoings.” Mete also told London’s Daily Mail that Childers’s “claims to have fought alongside us are a lie. He has never even seen the LRA.” Childers disputes Mete’s claims, saying that he has fought with the SPLA and against the LRA.

The film makers might have done better to portray Sister Rachele Fassera, the heroic nun who tracked girls abducted by the LRA from the school where she taught, and managed to secure the release of more than a hundred of them – the story told in Els De Temmerman’s book.

But I don’t believe she was carrying an AK-47…

*

Edited to add: aha! It appears that there will in fact be a film about Sr. Rachele –it’s to be titled Girl Soldiers, and will star Uma Thurman.  Good.

Part I. 

As I mentioned in my last post, I will be analyzing Anne-Marie Slaughter’s ideas about “Responsibility to Protect“doctrine, based on her Stanford Journal of International Law article, “Sovereignty and Power in a Networked World Order” in a series of posts order to better understand and critique the assumptions on which R2P rests. Before I begin, some caveats:

Reading these posts is no substitute for reading the article yourself and drawing your own conclusions. A truly remarkable paper of some 44 pages of academic prose, a blog review of Dr. Slaughter’s thesis, even in a series, will only be able to focus on her operative premises and not delve into every shade or nuance. Limitation of the medium, but readers are free to disagree or agree in the comments.

Dr. Slaughter is an IR theorist and international lawyer of eminent stature and her style of argumentation reflects both the strengths and the weaknesses of those fields.

On the empirical issue of general, trends in international affairs and conflict, I do not take issue with Dr. Slaughter’s assumptions about the rise of networked non-state actors, greater degrees of uncertainty, complexity and multipolarity among and within states and the systemic erosion of state legitimacy. Indeed, in a broad and fundamental sense, I share them as I think do most people studying irregular conflict, counterinsurgency, 4GW and hybrid wars. I take exception though to the truly radical legal and policy conclusions Slaughter draws from these trends, as well as her normative delight in their trajectory. It as if we both agree that the Westphalian house is on fire, but she is reaching for a jerrycan of gasoline in order to speed the process along.

Finally, in this series I intend to tackle her argument from a thematic perspective, addressing how Slaughter views core philosophical questions of authority, international law, sovereignty, legitimacy and power in inventing a “responsibility to protect” doctrine and what the logical extrapolation of her ideas entails. Slaughter structured her article differently, with these concepts interwoven as she made her case in five sections, with sovereignty being a dominant concept.

The first post will concentrate on Slaughter’s premises regarding the problem facing the international community and her proposed solution:

An excerpt from Dr. Slaughter summarizing her thesis in her introduction:

….Westphalian sovereignty faces two fundamental challenges in contemporary international relations….First, the ineffectiveness challenge….A State’s ability to control its own territory without external interference is no longer sufficient to allow it to govern its people effectively – to provide security, economic stability and a measure of prosperity, clean air and water, and even minimum health standards.

Second, is the interference challenge. The letter of Article 2(7) remain; the spirit is violated repeatedly and increasingly routinely. All of human rights law deliberately infringes on the domestic jurisdiction of every state, denying governments the freedom to torture, murder, “disappear”, or systematically discriminate against their own citizens. Moreover, throughout the the 1990’s the Security Council repeatedly found that the conditions prevailing within a state, from starvation in Somalia to political intimidation and massacre in East Timor, constituted a threat to international peace and security sufficient to require collective armed intervention, and should have made such a determination regarding the genocide in Rwanda. States can no longer assume that if they refrain from interfering in the affairs of other states they will remain free from interference themselves.

….In short, states can no longer govern effectively by being left alone. The converse proposition is equally true, although perhaps more startling: States can only govern effectively by actively cooperating with other states and by collectively reserving their power to intervene in other states’ affairs. The world has indeed turned upside down: small wonder that the concept of sovereignty needs to be redefined!

Startling, is a good description.

Slaughter’s first “fundamental challenge” pivots on an odd usage of the word “effective”. “Effective governance” here is defined by Slaughter as something other than a state’s actual physical control over the territory and population over which it asserts sovereignty. Explicitly, “effective governance” is then defined as the provision of modern public goods, presumably without resort to autarkic policies, as interdependence is one of her themes. 

To be fair to , there’s some merit to Slaughter’s consideration of the provision of public goods. States that face non-state actor challengers like Hezbollah who do fill social needs are thwarting their state opponents at the moral as well as the material level of conflict, winning over their loyalty and eroding the legitimacy of the state. So, if Dr. Slaughter was writing a manual on, say, psychological warfare or insurgency, she would have me on board here.

But, unfortunately, she isn’t. Slaughter is writing an article, ostensibly on international law, and a vague laundry list of economic items, a transient de facto state of public policy, strikes me as a poor foundation for a universal principle of law. By Slaughter’s standard, Mexico which provides public services, is democratically governed and economically  interdependent despite being strangled by a narco-insurgency of atavistic brutality, is “effectively governed”. Lebanon, whose government in is under the hegemony of Hezbollah is “effectively governed”. There’s a subsumed “correct” political economy embedded in the argument here by Slaughter; if a first world state decides to reject carbon footprint taxes, nationalized health care or privatizes it’s mail delivery, is it “ineffectively governed”?

At least the first challenge is relatively straightforward. Slaughter’s second “fundamental challenge” is an exercise in logical acrobatics.

Slaughter is correct that the spirit and at times the letter of international law (actual, real world, international law that has a chance of being followed, not R2P theory) is stretched to justify military intervention. She is also right that Rwanda’s genocide by the then radical Hutu regime constituted a threat to international peace and cried out for intervention, and the failure to do so resulted in not just genocide of the Tutsi people but ultimately an African WWI in the Congo basin. These two factually accurate examples are diametrically opposed to one another, yet somehow, they combine to arrive at the solution of institutionalizing military intervention in international law as a rule and not an exception. They are juxtaposed with the cases of Somalia, where no state, legitimate or otherwise, existed and East Timor, which was a case of de jure military aggression and annexation by Indonesia. The only thread tying all of these disparate examples together is a large pile of dead bodies.

Charnel house examples make for bad law, unless you have to govern a society of cannibals.

Finally, while boldly rejecting international law’s long established definition of sovereignty, Slaughter offers two easily falsifiable assertions, that states can no longer govern effectively by governing alone and that the ever present danger of arbitrary meddling by foreigners is a prerequisite for good governance. If so, Switzerland would be a Hobbesian hellhole today and Central America and the Caribbean islands would resemble tropical Singapores . The omnipresent threat of foreign meddling on religious grounds is what states ran away from screaming after the Thirty Year’s War, which may have killed up to a third of all the people in the Germanies.

Anne-Marie Slaughter proposes to restore that state of affairs on more secular grounds.

Next post – Slaughter on Authority and International Law.

ADDENDUM – Related posts:

Inkspots –R2P is NOT the new COIN, but Ulfelder is just as wrong as Safranski about why*

Fear, Honor and Interest –Geopolitics, Networks, and Complex Friction