Responsibility to Protect (R2P): Catch All

[LawVol]

The R2P arena is marked by Politik (politics and policy); and cannot be validly claimed (in my opinion, obviously) as an area governed by a determinative international law. That came home to me in connection with our (USAian) Libyan venture based on the UN Resolution and Presidential "Non-War Powers". While a number of voices shouted non-compliance with the War Powers Resolution and outright unconstitutionality, the salient fact was that Congress took no action opposing the President's actions. Thus, the President did not act illegally (since Congress did not act at all).

Unlike many others, but apparently in agreement with you, I also did not focus upon the "Constitutional question." However, I did see an international law issue. The Charter gives the UNSC the authority to act in cases of breach of international peace. Thus, action to eject Iraq from Kuwait had the sanction of international law. Although the UNSC did indeed act with respect to Libya, there use of this same clause was without legal justification. International law requires that a breach of peace cross international borders. Since that did not occur with respect to Libya, the UNSC had no authority to act. The question here is whether R2P has now expanded that authority.

Part 2: in looking at the Canadian input on R2P I see something broader than that set forth in the UN material. The UN material specifically sets forth genocide, war crimes, ethnic cleansing and crimes against humanity as a precursor to action. However, the Canadian material is worded a little broader. It seems to indicate authority for preemptive or preventive action, which doesn't seem to be the case with the UN wording. I believe the Canadian stuff came first, so one could look at the UN material as curtailing the Canadian position. Even so, the two positions demonstrate the inherent problems with R2P. Again, the Libyan action would indicate a much more liberal interpretation of R2P.

Of course, I may still have fog on the brain as I just completed the US-Kuwait-Bagram transient process from R&R. However, I am seriously trying to understand this R2P issue and its potential effects. You have a better grasp of these issues than I so I look forward to your thoughts.

[MikeF]

Mike- Great talking to you too.

Of course, I may still have fog on the brain as I just completed the US-Kuwait-Bagram transient process from R&R. However, I am seriously trying to understand this R2P issue and its potential effects. You have a better grasp of these issues than I so I look forward to your thoughts.

LawVol, run this thing out through your head and think about how a non-benevolent actor could manipulate the system of R2P particularly in a time of economic or regional crisis. The more I thought about it, the more this policy scared the crap out of me.

[LawVol]

MikeF: you are absolutely correct. Although I didn't discuss it in detail in my initial post, this is what I was referring to when I spoke of R2P being a tool for the developed world. Particularly with regard to a broadened interpretation of R2P, as with the Canadian documents, I can easily foresee R2P as an excuse for action. Maybe a Russian-Georgian conflict part two based on perceived "crimes" against ethnic Russians in Georgia? I'm sure you can imagine other examples. While the moral underpinnings of the doctrine may seem worthwhile, the doctrine itself leave too much open to interpretation and misuse. Of course misuse is in the eye of the beholder, so criticism can be made of nearly any intervention I guess.

[MikeF]

MikeF: you are absolutely correct. Although I didn't discuss it in detail in my initial post, this is what I was referring to when I spoke of R2P being a tool for the developed world. Particularly with regard to a broadened interpretation of R2P, as with the Canadian documents, I can easily foresee R2P as an excuse for action. Maybe a Russian-Georgian conflict part two based on perceived "crimes" against ethnic Russians in Georgia? I'm sure you can imagine other examples. While the moral underpinnings of the doctrine may seem worthwhile, the doctrine itself leave too much open to interpretation and misuse. Of course misuse is in the eye of the beholder, so criticism can be made of nearly any intervention I guess.

Well, the SWJ team here (JMM, Ken White, Steve Blair, and many others) have been helping me for the past four years really sorting through things, and I wanted to find reoccurring patterns throughout history that reflect today. Initially, I narrowed it down to 1866-1910, but I am now convinced that we are literally in a period that reflects the beginning of the twentieth century-small protracted wars of limited ends, contested global hegemony, economic shifts with the rise of the middle class and the Industrial Revolution, and the Rise of the West with an nascent American Empire blossoming. Theodore Roosevelt rose to the challenges of the day by building the Panama Canal and sailing the Great White Fleet.

As we (US, UK, and everyone else) move past Iraq and start to figure out how we're going to talk to each other, interact, trade, etc, in the future, we must understand what happened last time, but we cannot be bound by feelings of guilt either. We must move forward wisely.

This will take leadership.

When design theory was first introduced in the late 1960's, it came from systems thinking, and one rule that has since gone away, but has always stuck in my mind is

The planner has no right to be wrong.

[MikeF]

From a mentor

Mike, the future is less likely to be what "we" want and more of what others demand. Neither of these solutions, which appear to be two ends of a continuum of US intervention policies, appear to be workable from my perspective. Policy is likely to be grounded in context and the worldwide context is very different. The US will most likely be pulling out of certain regions, developing coalitions in others, and pursuing some unilateral interventions (broadly defined to include MOOTW) in others. We also are in Age where grassroots movements worldwide are toppling oligarchy. What will replace them is uncertain, but it will be a very different world and very difficult to make unilateral policy. The US not longer has the ability to "control" what is going on although our we will continue to try to shape things. The defense establishment (and I am including politician-hawks) needs to understand the limits of military power; my guess is that they haven't learned the lessons of Iraq and Afghanistan. If they drag us into more combat into Muslim countries or with China, we are done for

[MikeF]

From a Friend

1. I think Ms. Slaughter makes a good point of the rise in importance of SOF operations and more flexible options, however, I believe that she is throwing out the baby with the bathwater and is in fact making a key philosophical error in assuming that the nature of war has fundamentally changed. While the techniques and tactics certainly change and the frequency of large scale conflict may be far less than “small wars”, the idea that the world has moved beyond large scale conflict is both incorrect and has dangerous implications as we refashion the defense apparatus.

2. We (the royal, collective “we”) are often perpetrators of “Chronological Snobbery”, to use C.S. Lewis’ term, and somehow assume that the problems of today are unique and those before us were not as clever as we are nor did they have as good understanding of the topic (whatever it is) as we do now. While I am not arguing about technological issues (tanks are better than chariots), I would offer that the fundamental nature of war is a very human endeavor, has not changed much, and that the problems faced throughout histor, are essentially the same, albeit with different restrictions, enablers (constraints, restraints, etc.). e.g. How do we raise and pay for a military, defeat our adversaries, subdue a population, turn the win into a beneficial and sustainable endstate, etc. Until we change human nature, I do not think that this will change much.

3. Historically speaking, we are also off the mark as we look back at all the big wars that were never supposed to happen. But did.

4. So, while I believe that the military was far too force on force focused prior to 9/11, I also hesitate to advocate that we dispose of all of our tank and attack helicopters in light of a pure SOF force. In the end, I hope to see balance come the Force and that the nation ensures that it develops/maintains an array of options that can be used to achieve our ends in a flexible manner.

[MikeF]

From another friend

South African Albie Sachs wrote a prize-winning book called The Soft Vengeance of a Freedom Fighter. In 1988, an assassin found him in Mozambique, where he was exiled from South Africa, and blew up his car. Sachs missed death but lost a leg and an eye. Upon return to South Africa, he met the man who ordered the bomb. The man offered to shake his hand. Sachs said no. “I will shake your hand after you go through the Truth and Reconciliation Commission.” Sachs went on to become responsible for constitutional protection for equality of marriage in South Africa. Why did he refuse the hand of his would-be assassin? Because, in his words, "seeing a future, that has a process by which to arrive at it, is much more beautiful than ordinary punishment. It is to bet on a huge transformation of our country that will validate everything we went through."

[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.

[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...