A Nation's Duty to Contain Bad Guys

The Jan-Feb 2009 issue of Foreign Affairs has an excellent article by Michael Chertoff, The Responsibility to Contain: Protecting Sovereignty Under International Law, which you will find here. This is a policy article, not a technical I Law thesis.

The primary issue which Chertoff addresses is this one:

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SOVEREIGNTY RECIPROCATED

What should the international community do when global threats originate entirely within a state that does not consent to reciprocal international security obligations? This can occur when, for example, a nation fails to enact adequate domestic security measures or is simply unable to control terrorists or other criminals within a particular region. These situations present truly hard cases because they place the international community's security interests in conflict with a nation's right to control its internal matters. But states can no longer refuse to act by hiding behind seventeenth-century concepts of sovereignty in a world of twenty-first-century dangers. International law should not be powerless to prevent deadly nonstate threats from spreading from one state to others. If it is, the sovereignty of all nations will be sacrificed to preserve the sovereignty of one.

Therefore, international law must be updated to reflect the reciprocal nature of sovereignty in the modern era. .....

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The challenge is to adapt I Law to deal with "white spaces" (ungoverned areas), which harbor bad guys - and the right to employ Article 51 to root them out. Obviously, the issues raised in this article are relevant to Astan, Pashtunistan and Pakistan - as well as Somalia, etc., etc.

Chertoff does have a background in I Law (with the Latham law firm) - see bios here, here and here. Also he is a Harvard Law grad. :(

I'd be interested in comments from non-lawyers on Chertoff's proposals.

If a nation is being used as a safe haven by criminals/insurgents and those criminals/insurgents conduct ops in a second nation, then the original nation is either hosting those criminals/insurgents and it is an act of war, or they lack the ability to enforce their own sovereignty and therefore lack sovereignty.

Either way, other nations shouldn't feel compelled to respect that safe haven nation's sovereignty.

I've never had a moral/principled issue with attacking insurgents/criminals in another nation's territory, provided those insurgents/criminals are damaging the attacking nation.

Of course, there are pragmatic issues involved that need consideration.

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Originally Posted by 120mm

If a nation is being used as a safe haven by criminals/insurgents and those criminals/insurgents conduct ops in a second nation, then the original nation is either hosting those criminals/insurgents and it is an act of war, or they lack the ability to enforce their own sovereignty and therefore lack sovereignty.

Either way, other nations shouldn't feel compelled to respect that safe haven nation's sovereignty.

I've never had a moral/principled issue with attacking insurgents/criminals in another nation's territory, provided those insurgents/criminals are damaging the attacking nation.

Of course, there are pragmatic issues involved that need consideration.

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Given the above, what is your opinion of this? GEN McCafferty is hardly an anti-US source.

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Originally Posted by GEN (R) Barry McCafferty

Mexican law enforcement authorities and soldiers face heavily armed drug gangs with high-powered military automatic weapons. Perhaps 90% of these weapons are smuggled across the US border. They are frequently purchased from licensed US gun dealers in Texas, Arizona, and

California. AK-47 assault rifles are literally bought a hundred at a time and illegally brought into Mexico. Mexican authorities routinely seize BOXES of unopened automatic military weapons. The confiscation rates by Mexican law enforcement of hand grenades, RPG’s, and AK-47’s are at the level of wartime battlefield seizures. It is hard to understand the seeming indifference and incompetence of US authorities at state and Federal level to such callous disregard for a national security threat to a neighboring democratic state. We would consider it an act of warfare from a sanctuary state if we were the victim.

The bottom line---the US is ineffective and unresponsive to Mexican concerns about weapons, bulk cash, and precursor chemicals flowing south into Mexico from the United States--- with a blow-torch effect on the security of the Mexican people.

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Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?

What happens when a more powerful state is "hosting" a "criminal" organization that is "attacking" a weaker state? Or two nuclear states? Or two weak/failing states? Cav has a good example, and there are others. Pakistan/India. Russia/Georgia. Chad/Sudan.

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Originally Posted by Cavguy

... GEN McCafferty is hardly an anti-US source.

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True but he is awfully prone to hyperbole and belief in divine providence and his omniscience, not necessarily in that order...:rolleyes:

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Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?

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I'm not at all sure the second amendment has anything to do with it; crooked dealers and the black market may but I'd be really amazed to find out that said crooks were actually selling grenades and RPGs, both effectively illegal in the US (barring quite strict and closely watched FFL plus laws and rules on destructive devices LINK).

Having said that, I agree with your basic point. However, I also think the issue is government tolerance or tacit support of the illegal act and while one can make the case that our inefficient by design governmental system is at fault in not remediating the weapons sale issue (and I certainly agree we are definitely at fault in that), one would be hard put, I think, to make a case of even tacit support much less connivance.

So with apologies to you but not to Barry, I'm not sure the case is made to refute Chertoff's assertion.

I'd further suggest that he, Chertoff, is on the right track -- a lot of laws and treaties and conventions such as the GC need a revisit in light of 'advances' in our civilization over the last 50 plus years. I think his article's final paragraph is on target:

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"The time has come to dispense with two prevailing, and contradictory, myths about international law: that it is necessarily antagonistic to U.S. interests, and that it is an inherently superior enterprise whose rules should trump policies adopted by democratically elected representatives. If the vitality of democratic principles is to be preserved, the United States must reject both of these extreme views and encourage its partners to help build a modern and sustainable international security framework -- one based on the reciprocal responsibility to contain. Such a framework will fail if it overreaches by imposing binding rules prematurely or by subordinating cherished democratic principles to the prevailing normative winds. It will be more likely to succeed if it squarely addresses the new and dangerous threats to sovereignty that have emerged. In the end, only if the United States and its partners take a balanced and measured approach to these challenges will the legitimacy of the international legal system flourish."

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Works for me. :cool:

I would note, that as you say and for reasons good or bad, we are in fact failing in our "responsibility to contain."

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Originally Posted by AmericanPride

What happens when a more powerful state is "hosting" a "criminal" organization that is "attacking" a weaker state? Or two nuclear states? Or two weak/failing states? Cav has a good example, and there are others. Pakistan/India. Russia/Georgia. Chad/Sudan.

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they'll get away with it. Reality can be a burden...

I for one find that particular McCaffrey report critically flawed. Any assessment of the drugs and criminal situation in Mexico and its effects on the US that does not address illegal immigration into the U.S. and border security is mental flatulence.

Offering that 500,000 Americans live in Mexico is specious when you have to guess how many millions of Mexicans and others illegally live inside the U.S. is a vacuous statement.

Frankly this merely echoes his role as "Drug Czar".

Tom

Well caught. ;)

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they'll get away with it. Reality can be a burden...

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Then I have to ask: what's the point of a law if it fails to protect the weak?

I think the Austrians demonstrated this principle under similar circumstances to great effect in 1914.

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Originally Posted by AmericanPride

Then I have to ask: what's the point of a law if it fails to protect the weak?

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and I'll point out that most laws are not designed to protect the weak, they are intended to preserve and enhance the power of the state and its nominal elites. Those few laws that do attempt to protect the weak are at best ineffective and very spottily applied. As Charles Dickens said about 170 years ago:

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."

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I think the Austrians demonstrated this principle under similar circumstances to great effect in 1914.

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Not really. In fact, all 1914 shows is that then, so-called International Law was a farce. A farce with no force.

It still is.

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In fact, all 1914 shows is that then, so-called International Law was a farce. A farce with no force.

It still is.

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and I'll point out that most laws are not designed to protect the weak, they are intended to preserve and enhance the power of the state and its nominal elites.

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Then why do you think Chertoff is "on the right track" if the "burden" of "reality" that you describe above does not change?

International Law is enforced by the stronger party when the cost of enforcing it outweighs the cost of not enforcing it. The existence of a law raises that cost of not enforcing or not following it. That does not mean that the law will always be, or never be, enforced. It just tips the scales slightly. You asked what would happen when a stronger party was the violator. Ken responded that probably nothing would happen. I agree. I also agree that Chertoff is on the right track. We’re the stronger party, seeking to change the laws to suit our interests. That does not mean that we will always adhere to those laws, nor does it mean that we will always enforce them upon others. But it does tip the scales in our direction, changing the laws to better suit our strengths and to be less accommodating to our adversaries’ strengths, raising the costs for our adversaries to leverage their strengths and lowering the costs for us to leverage our own.

And what happens when we're no longer the stronger party, or those laws accomodate our enemies' strengths more than our own? Our most recent tinkering with international law (Kosovo) opened, some argued, the way for Russia to intervene in Georgia; which, IMO, has damaged our credibility and our interests. And how does selectively employing these laws also affect our credibility and our interests, since you acknowledge that we will likely not apply Chertoff's suggestion universally or fairly?

EDIT: Hypothetical. The kind of international law regime described by Chertoff goes into effect. PRC/ROC relations hit an all-time low. US defense support of ROC continues. Could the PRC invoke such a law, given the PRC's view of Taiwan's legal status? What could be the consequences for US-PRC relations?

is in a state of flux (as it has been since about 1993 or so) and that changes will occur. He's trying to point out a direction that some of the changes should take. Most make sense. I could quibble a bit but it makes no difference so why bother?

There really is no international law. Webster's preferred definition is:

" (1): a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority."

As described by the first clause there is 'international law' but the "binding" element is suspect at best; nations will be bound as long as it is in their interest to do so. When that ceases, there is no binding...

The second clause is nearer reality. Note that it requires said binding (with all that does or does not imply) or, more importantly, enforcement by a controlling authority. The closest thing internationally to such an authority is the UN yet it really has no enforcement capability (and it should not). Essentially, lacking a world government (which none of us alive today are likely to see. Fortunately and thankfully...), there can be no true international law, only international norms which most nations will adhere to most of the time -- and that's okay, it's adequate for a 90+ % solution.

That almost good solution will still be designed to favor the State and will be less than helpful to the weak...

Which is about as good as you can expect in reality (with no quotes about it :D )

I presume that your first question was rhetorical. So, on to the second...

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Originally Posted by AmericanPride

And how does selectively employing these laws also affect our credibility and our interests, since you acknowledge that we will likely not apply Chertoff's suggestion universally or fairly?

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I would say that anytime that it appears that we are selectively attempting to enforce laws, it harms our credibility. Whether it harms our interests is situation dependent. For example, let's say that waterboarding KSM was illegal, but that we got some actionable intelligence to prevent a significant attack upon us. I think you could argue either way whether this was in our best interests (good in terms of defending against a threat, bad in terms of public diplomacy).

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Could the PRC invoke such a law, given the PRC's view of Taiwan's legal status? What could be the consequences for US-PRC relations?

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Question 1: yes. Question 2: probably bad.

So where are you going with this line of questioning?

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I would say that anytime that it appears that we are selectively attempting to enforce laws, it harms our credibility. Whether it harms our interests is situation dependent. For example, let's say that waterboarding KSM was illegal, but that we got some actionable intelligence to prevent a significant attack upon us. I think you could argue either way whether this was in our best interests (good in terms of defending against a threat, bad in terms of public diplomacy).

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Good point.

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So where are you going with this line of questioning?

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IMO, Chertoff's proposal would simply empower our rivals by giving them a legal instrument that we claim to support. The Russians did this exact thing with Georgia using the Kosovo precedent we set. The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now? And if it's not necessary (read: there are alternatives to justifying US action), why bother legitimizing the intentions/actions of our near-peer competitors? I also wonder what the consequences are at home in forming domestic concensus on policy when we make these kinds of institutions/laws based on moral arguments, only to selectively apply them.

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Originally Posted by Cavguy

Given the above, what is your opinion of this? GEN McCafferty is hardly an anti-US source.



Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?

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That article was a factually flawed anti-gun piece which "cherry-picks" poor data. In other words, it's pretty much bull####. Despite what the leftist rabidly anti-gun media types say, you really can't get military arms from legal gun dealers in the US. Far more likely they are getting them shipped as scrap metal from the Far- or Middle East in 20 foot containers. They are a lot cheaper that way, as well.

You could also say that the Mexican gov't has de facto declared war on the US for their intentional flooding of the US market with illegal free labor and drugs.

But the pragmatic piece kicks in, where the Mexican gov't couldn't really get away with cross-border raids, (thought their military and police forces have invaded the US several times in the past few years, with Mexican gov't officials basically winking and nodding at the perpetrators) and the US couldn't afford to rebuild that crap-hole after we invaded them. Which is why nation-states tend not to hold other nation-states' feet to the fire when it comes to retaliating for safe-havens.

Edited to add: I just now saw that McCafferty wrote that. Well, just because he is a retired General doesn't mean he actually knows his head from his butt when it comes to weapons trade.

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Originally Posted by AmericanPride

IMO, Chertoff's proposal would simply empower our rivals by giving them a legal instrument that we claim to support.

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Empower them to do what?

We claim to support the UN as well but ignore it when it suits us. We've been doing that for over 50 years.

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The Russians did this exact thing with Georgia using the Kosovo precedent we set.

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So they said. Sophomoric sophistry designed to appeal to European social democratic values. The Russians and the US (and the French and the British...) have been intervening in violation of one rule or precedent or another for years. that's unlikley to change. China, India and / or Japan and Brazil may join the party but it'll likely be a while.

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The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now?

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Not necessary, just to our future advantage to have it available -- not that we'll necessarily totally heed it. :wry:

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And if it's not necessary (read: there are alternatives to justifying US action), why bother legitimizing the intentions/actions of our near-peer competitors?

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Because the power structure likes to have the law on their side realizing full well that they'll ignore it when they wish -- knowing that applies to others as well. As I said above, it's a 90% or thereabouts solution, no more.

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I also wonder what the consequences are at home in forming domestic concensus on policy when we make these kinds of institutions/laws based on moral arguments, only to selectively apply them.

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As we have done for over 200 years? Same reaction in the future as in the past, I suspect -- the One Third Rule applies then, now and probably in the future.

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from AP
The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now?

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Correct - Article 51 & UN Res re: collective defense justify our actions within Astan.

Now, explain the justification for cross-border action in Pakistan without using some form of Chertoff's logic - assuming no Paki consent.

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Now, explain the justification for cross-border action in Pakistan without using some form of Chertoff's logic - assuming no Paki consent.

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Justification is a difficult word. Who are we justifying to and why is it necessary to justify it to them?