Responsibility to Protect (R2P): Catch All

[Ken White]

The planner has no right to be wrong.

He or she often will be...

[jmm99]

LawVol:

With respect to the US, three branches are potentially involved in deciding constitutional and international law issues. With respect to decisions to go to war (jus ad bellum), the Supreme Court has made it clear that it won't get involved in second guessing those political questions, leaving them to Congress and the Executive. If the Executive acts and Congress does not act, the Executive's actions will stand (in practical effect, will be "legal"), regardless of what you, I and the woman down the street think of them. UNLESS, and this may or may not be a big "unless", UNLESS the people then take action to cause the Executive to change course.

In the case of the UN, the SC is the Final Decider as to "peace", "international security" - and to Chapter VII actions. Given the concurrence of the permanent members and the acquiescence (or silence) of the General Assembly, the SC actions will be the "law", regardless of what you, I and the woman down the street think of them.

While the velvet glove has been used by the UN versus the iron fist in Chapter VII matters, the latter is available under Arts. 48 & 49 to a greater extent than, say, under Art. 5 of NATO:

Article 48

1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 49

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Of course, if you are a permanent member (or a functional equivalent, such as Germany), you have less to fear from Mr Hiss' well-drafted arrangement.

Like Zhivago, you might say to the UNSC: "That only gives you the Power, it doesn't give you the Right." But, I find that of little comfort.

Regards

Mike

[LawVol]

In the case of the UN, the SC is the Final Decider as to "peace", "international security" - and to Chapter VII actions. Given the concurrence of the permanent members and the acquiescence (or silence) of the General Assembly, the SC actions will be the "law", regardless of what you, I and the woman down the street think of them. . . .

Like Zhivago, you might say to the UNSC: "That only gives you the Power, it doesn't give you the Right." But, I find that of little comfort.

As you are aware international law comes in two varieties: treaties (and the like) and customary international law. Customary law is built upon state practice and evolves over time. Thus, a single act by a state is not enough to constitute customary law. There must be action and acquiescence over time. I think this applies to Inter-governmental bodies such as the UN as well. A one-off action like Libya, even with acquiescence from the General Assembly, can become "law." However, the UNSC can now use Libya as precedence to build upon the concept of R2P (or whatever their basis) which can them become customary law. Only objections can prevent this from occurring. While objections would certainly hold more water if they came from States, sometimes they must come from individuals academia or other organizations. Does this work? Not always, but R2P and the UN Declarations of Human Rights, among other concepts, were initiated by non-state entities.

I guess I am just not as quick to call UNSC action with regard to Libya "law." Of course,m it occurred and nothing will change that, but we must look to next time. So, yes, I do take some small comfort in the evolutionary nature of customary law.

[Bob's World]

R2P is a slippery slope. Like "controlling WMD" "protecting the populace" sounds honorable and noble, and will be employed to slap an honorable and noble rationale onto all manner of adventures, regardless of the true purpose and intent.

Even when the purpose and intent are largely pure, it is by its very nature the worst possible abuse of the sovereignty of some other nation. The primary duty of government in their exercise of the sovereignty granted them by their populace (be that into one man or a vast conglomerate of democracy) is to "protect the populace."

R2P is the essence of sovereignty when exercised at home. R2P exercised abroad is the essence of overriding the sovereignty of another.

This is so fundamental that it must be placed in the proper context to really appreciate the magnitude of what we are saying.

Sometimes in the exercise of one's own sovereign duties a government gets so carried away that it becomes easier and easier to justify violations of the sovereignty of others in the pursuit of one's own. The US has come to cast too wide of a net over that past 60 years of what we see as our interests and our sovereign duty to protect. This drives a rationalization process as others seeking their own destinies outside of that US-shaped construct push back. What the US needs is not new rationale for violating the sovereignty of others in pursuit of our own, what the US needs is a new assessment of what our sovereign duties truly are. Controlling outcomes was nice, but not necessary. Influence is enough, and it comes at lower costs of almost every variety.

[M-A Lagrange]

R2P is the essence of sovereignty when exercised at home. R2P exercised abroad is the essence of overriding the sovereignty of another.

R2P can be seen has the obligation of the States to protect their populations against any threat. What Bob calls sovereignty.
But R2p can be seen also as an extension of the regalia power/rights of the States vs their population and then is the basement for legitimacy. In other words, a State apparatus is legitimate when it uses its regalia power to protect the individuals and properties of the population that is under his grip. (Couldn't find a better word but my english is sometimes limited).

What we are witnessing those days is a back fire from the States who felt endangered by the extension of the R2P principle (they do not apply at home) to international relations; the fear from States that R2P would restrein their "independance" and sovereignty.
This is a concervative understanding of R2P which is based on the old principle that aState apparatus has all liberty to act on his soil. (Basically you can do what ever you want to your populations as long as you do not conduct operations out side of your borders).

R2P was used in Ivory Coast and Lybia to support regime change under the argument that government do not have the right to arm their populations (strict application of the R2P at national level extended to the international level on the obligation from others to ensure that a regime in place is applying R2P at national level).
Now, in Russia and DRC, we can witness the back fire of such an audatious move and interpretation of R2P from "progressist countries". We are back to the legitimacy problematic: who is legitimate? the institutions or the people?
R2P tries to impose the people as the source of legitimacy. In response, States are imposing the institutions as the first source of legitimacy, do government protect or not their populations. (Fraudulent elections not respecting the will of the people are nomore a good reason to ban a government)

Further than a legal practice, R2P is an attempt to introduce a real change in what are the basement of a State and in governing practices.
Will take time and the light at the end of the tunnel is far away. But there is still hope that one day, government first priority will be to ensure their population protection against any threat, political, socia;l, natural or man made.
But some say I'm a dreamer.

[Bob's World]

But there is still hope that one day, government first priority will be to ensure their population protection against any threat, political, social;l, natural or man made.
But some say I'm a dreamer.

One's inability to perform their duties to standard only redefines their duties when their employer submits to accepting this substandard performance.

The people are the "employer" of government. Many populaces have submitted to accepting substandard performance from their employee because they felt they had no other good options. In the modern information age they are much more aware of others who either have more effective employees (governance) or have taken it upon themself to either improve or replace ineffective employees (governance).

The fundamental duty of sovereignty is indeed as M-A describes above. Increasingly government must step up to perform to standard or risk popular action to address their shortcomings (legally where legal means exist, or illegally where such sub-standard employees have written rules to pretext their ineptitude). Also increasingly it is unacceptable to violate the sovereignty of another in the pursuit of one's own interpretation of their own sovereignty. This is where this R2P concept falls apart. I don't know the government wise enough to apply it without doing at least as much harm as good.

[M-A Lagrange]

One's inability to perform their duties to standard only redefines their duties when their employer submits to accepting this substandard performance.

The people are the "employer" of government. Many populaces have submitted to accepting substandard performance from their employee because they felt they had no other good options. In the modern information age they are much more aware of others who either have more effective employees (governance) or have taken it upon themself to either improve or replace ineffective employees (governance).

Bob,

I would like to introduce here the distinction between subjects and citizens.
In most democracies people are citizens: the employers of the government. They get the government and governance they deserve as it is them who choose. As they can influx on government composition, government is forced to protect them and apply R2P.

In most of the countries where State is failing to assume its protection duty, people are subject of the government. Unlike citizens, subjects have a very limited capacity to influx on government composition and governance.

Failure to implement R2P at national level is mainly taking its roots in such distinction of population status by the ruling persons but also by the population itseld. If people perceive them as the subject of a government, they do not expect State to act in their favor but as a burden at the best and a predator in most of the cases.

R2P effort at international level is all about changing such dynamic.

[jcustis]

Sometimes in the exercise of one's own sovereign duties a government gets so carried away that it becomes easier and easier to justify violations of the sovereignty of others in the pursuit of one's own. The US has come to cast too wide of a net over that past 60 years of what we see as our interests and our sovereign duty to protect. This drives a rationalization process as others seeking their own destinies outside of that US-shaped construct push back. What the US needs is not new rationale for violating the sovereignty of others in pursuit of our own, what the US needs is a new assessment of what our sovereign duties truly are.

And I think two examples of how this mindset could creep into policy and action come from none other than the mouthbreathing Governor of Texas, in the Sat debate, when he tried to put together a cogent sentence on the pending budget cuts and the issue of Iraq:

“You can’t cut $1 trillion from DOD and expect America’s freedoms aren’t going to be compromised.”

That was the claim stated by Texas Governor Rick Perry in response to a question from WMUR’s political director Josh McElveen about the role of President as a commander-in-chief. The claim, was in reference to Obama’s shrinking of the military, as outlined to the Pentagon earlier this week.

“I would send troops back into Iraq because I will tell you, I think we start talking with the Iraqi individuals there,” Perry said. “The idea that we allow the Iranians to come back into Iraq and take over that country with all of the treasure both in blood and money that we have spent in Iraq because this president wants to kowtow to this liberal leftist base and move out those men and women.”

Those where my thoughts when I listened to him say that.

[MikeF]

He or she often will be...

Of course Ken, but good leaders bypass the minefield once they realize they've gone the wrong direction; they don't charge ahead to prove they were right.

[Ken White]

Of course Ken, but good leaders bypass the minefield once they realize they've gone the wrong direction; they don't charge ahead to prove they were right.

Heh. Of Course indeed. Been there done that with the anointed and the 'how on earth did HE get there...' types. Shame they aren't all good. Problem is the top 50% of Leaders are good, the bottom 50% by definition are less so but all can be in a position to decide to charge or not.

Yes, the selection process is supposed to preclude that. It does a fair job but is far, quite far, from infallible. The sad and sorry Personnel system can put one of the lower half in charge of a BCT which may or may not have two or three upper half LTCs. Even if the BCT is lucky enough to have those good ones at Bn / Sqn level, who wins on what happens...

[MikeF]

Heh. Of Course indeed. Been there done that with the anointed and the 'how on earth did HE get there...' types. Shame they aren't all good. Problem is the top 50% of Leaders are good, the bottom 50% by definition are less so but all can be in a position to decide to charge or not.

Yes, the selection process is supposed to preclude that. It does a fair job but is far, quite far, from infallible. The sad and sorry Personnel system can put one of the lower half in charge of a BCT which may or may not have two or three upper half LTCs. Even if the BCT is lucky enough to have those good ones at Bn / Sqn level, who wins on what happens...

Ken, how much of the upper-level management would you cut?

[Ken White]

Ken, how much of the upper-level management would you cut?

Probably about 50% ala Jack Singlaub but upper level managers (managers are civilian, right? Right?? ) are a small problem. Upper level uniformed leaders who are more concerned with protecting the institution are a far greater problem -- and the Congress is almost as significant a problem for several reasons we all know. Military excellence is not high on their priority list...

However, such focus on people in positions is not the real issue, the systemic malaise and dysfunction engendered by too many laws, too much well intentioned but pervasively stupid regulations and a focus on from over function; appearance over competence; and the enhancement of the institutions (plural) are the problems. The senior people are products of the system, they are doing to the best of their ability what the system says they should do (as is true of far too many less senior people but that's another story...). Cuts will be simply another Band Aid ® on a system that is very much in need of total redesign. You want better performance and results, you will have to change the system. Pretty radically, too...

That would entail Congress emphasizing competence instead of pseudo-fairness (and it is very pseudo...) and 'objectivity,' . It would entail dumping the 1917 Personnel system (as amended in 1940, 1963, 1980, etc.); dumping the terribly flawed Task, Condition and Standard based BTMS system; removing grade creep (there are too many Officers, especially FlagOs, too many senior NCOs -- I'm fully aware of Mob requirements but there better ways to get there and improve quality in the process); testing people for promotion; rigorously testing units for performance and removing incompetent leaders from the service (acknowledging that Congress and HRC truly hate that idea for very different reasons...) and a few other things. You want it fixed, all that is necessary but any one item remediated would bring some improvement, two would help a lot. Good luck with any of it.

Lacking major surgery, the tumor will just continue to grow, a few slices here and there won't stop it. Make no mistake, the protectionism, CYA-ism / risk avoidance, political correctness and stifling bureaucracy are malignancies that have corrupted the system...

[ganulv]

That would entail Congress emphasizing competence instead of pseudo-fairness (and it is very pseudo...) and 'objectivity,' . It would entail dumping the 1917 Personnel system (as amended in 1940, 1963, 1980, etc.); dumping the terribly flawed Task, Condition and Standard based BTMS system; removing grade creep (there are too many Officers, especially FlagOs, too many senior NCOs -- I'm fully aware of Mob requirements but there better ways to get there and improve quality in the process); testing people for promotion; rigorously testing units for performance and removing incompetent leaders from the service (acknowledging that Congress and HRC truly hate that idea for very different reasons...) and a few other things. You want it fixed, all that is necessary but any one item remediated would bring some improvement, two would help a lot. Good luck with any of it.

Is there anywhere that a model other than up–or–out is used? If so, is it/are they any more effective than the U.S.’s?

[Ken White]

Is there anywhere that a model other than up–or–out is used? If so, is it/are they any more effective than the U.S.’s?

However, 15 plus years ago, we were the only nation using an announced and enforced up or out program. Thirty years ago we didn't have one and the personnel system worked a little better then than it did 15 years ago -- or today according to my sources...

All organizations with any sort of heirarchy have, written or unwritten, a policy that is some variant of up or out. Most use failures in performance to determine who goes out. the US is exceptional in that reliefs for cause and summary dismissal for non performance are virtually frowned upon while consistent failure to conform is as or more important. The US process amounts to failure to get selected for promotion . Not all bad except for the fact that too many Promotion Boards tend to select based on a quota system and on the basis of the Official Photograph in the service record. Those factors are not ameliorated by the fact that much emphasis is placed on who rated the selection candidate.

All things considered, there is some good in an up or out program IMO -- the problems arise when the system goes into a zero tolerance mode for logical exceptions and / or uses specious criteria for identifying departees. That lack of flexibility is based mostly on the rationale that such exceptions create work for the personnel management squirrels.

A 'one size fits all' model is easy to administer but it does not really work for a large organization -- or nation...

That returns us to the thread. The R2P mantra is fallacious BS. It also is an attempt to dictate a standard response -- and that's impossible. We for example have that R2P for the Chines in those towns and cities. What are we doing to fulfill that 'responsibility?' What about Iran? Syria? Hungary today? Belarus? Venezuela? The Congo? Even Pakistan?

This ones for you, Bob -- or would be female drivers in Saudi Arabia?

There can be no R2P unless one wants to plunge the entire world into constant conflict...