A Nation's Duty to Contain Bad Guys

[Ken White]

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

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.

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

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.

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

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

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?

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.

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.

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.

[jmm99]

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?

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.

[AmericanPride]

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

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

[Ken White]

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

earlier attitude as expressed by this:

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

[AmericanPride]

Ken, I think it's situationallly dependent. The need for justification is inversely proportionate to a state's power IMO. Because our adversaries are currently in a weaker position, any kind of legal justification has greater relative utility for them.

[Ken White]

Ken, I think it's situationallly dependent. The need for justification is inversely proportionate to a state's power IMO. Because our adversaries are currently in a weaker position, any kind of legal justification has greater relative utility for them.

that is not an attitude born of Judeo-Christian moral and legal tradition which much of the world has not accepted and likely will not adopt.

Including, in a way, the US. We have for over 200 years been willing to flout convention, the desires of many other nations and the 'law' when it suited our purposes. Most other nations have done the same. You are absolutely correct that it is situationally dependent, I agree on that aspect but I'm not at all sure that most will see any added utility to themselves. I think some will object to the idea on principle as being 'preemptive' and thus wrong on all levels while most will accept it to one degree or another. Rather, I think the potential impact will be in the US and other European hearth nations (and nations influenced by that hearth) in the form of objecting to action without the justification.

I also strongly suspect such objections will be ideologically based unless the provocation is extreme in which case it will be supported regardless of justification. We humans are a bloody and vindictive lot...

Given my belief that laws require an enforcement capability or they end up just like padlocks -- keeping honest people honest -- that 90% solution, it's hard to say how it will play out. We'll have to see, I guess.

[Entropy]

I agree with the beginning of the piece, but began to have problems at this point:

Given that international law is an inescapable fixture in today's global political landscape, there is a better way to address modern legal activism. International law should be neither a political tool used to undermine the sovereignty of individual states nor an instrument used by those who seek shelter behind the sovereignty of one country to launch attacks against another.(Emphasis added)

Good luck with that. The reality is that international law will continue to be a political tool and one that the US will use as much or more than anyone else. And Ironically, by advocating later in the piece that sovereignty is (or should be) essentially forfeited under some circumstances, he's advocating that it is, in fact, ok to "seek shelter behind the sovereignty of one country to launch attacks against another." This policy is likely, IMO, to be abused to provide legal cover to launch attacks against another state.

Yet from the standpoint of the targeted state, there is no meaningful difference between an attack launched by a government and an attack launched by terrorists whom a government has failed to control.

Really? I think most people realize there is a world of difference. I certainly think we in the US understand there is a difference between, for example, AQ plotting in ungoverned areas of Pakistan against the US and the Pakistani state plotting against the US.

If states fail to contain transnational threats, there must be an international legal regime that subjects them to potential sanctions or even, if necessary, military intervention aimed at neutralizing those threats. Far from signaling a retreat to unilateralism, this approach would require cooperation in building a new legal framework. The mechanisms and limits of such an international legal regime will require time and effort to construct; the alternative, however, is an ad hoc regime that either encourages a go-it-alone approach or results in international paralysis. Embracing this new framework would not amount to abandoning consent-based international law; rather, it would enhance it. By recognizing that modern technology, transport, and trade often propel the destructive consequences of one state's action or inaction far beyond its own territory, the new framework would help states defend their sovereignty against new security threats. (emphasis added)

The implications are that states will be held legally responsible for threats coming from their territory no matter what and that other states would be legally free to take action in response. The problem here is pretty apparent - what states consider a "threat" is so widely variable as to include virtually anything. This legal regime would, therefore, necessarily require some definitions of what threats will legitimate a response in order to avoid abuse. Good luck with that. As we know from all the failed attempts to define what a "terrorist" or "freedom fighter" is on an international basis, I think it's highly unlikely the community of nations could agree on a legal definition to limit what is and is not a legitimate threat. The result would be that each state would define the threat as it sees fit, resulting in a legal blank check for intervention - particularly for perennial weak states like Pakistan who have never been able to control their own territory. There are a lot of states with restive or barely-governed populations and none of these states are going to sign on to a program that will give others a legal right to unilaterally take punitive actions including invasion. In much of the world, this idea will be perceived as an attempt by the Western powers, and the US in particular, to increase their hegemony/empire.

This legal regime is also counterproductive, IMO. Certainly in some cases it might be argued that the threat of sanction or intervention might compel a state to exercise better control over its sovereignty, or it might lessen duplicity where the state tacitly allows such things to give it plausible deniability. But that's a big might. In the majority of cases, particularly for countries like Pakistan which are incapable of exercising the kind of sovereignty we'd like, this regime will do nothing to increase sovereignty - in fact, the opposite is quite likely. One can imagine insurgent groups purposely becoming a threat to third countries as and even better tool to weaken the host government than it currently is. Pakistan is another great example. We see that even the limited unilateral US operations in Pakistan are weakening state control in the FATA, not strengthening it. A major intervention risks collapsing the Pakistani state. Adopting a legal regime that would provide some international authorization for such action doesn't make the action more desirable or intelligent from a policy standpoint. It's also hard to imagine just how sovereignty will be improved through intervention and/or punitive sanction over the long term.

So Sec. Chertoff is trying to have it both ways IMO - one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions.

Here are a few more critical points Sec. Chertoff failed to address:

1. What happens after an intervention to "neutralize those threats?" Let's assume, for a minute, that a foreign power is able to neutralize a threat the host state cannot - a dicey premise to begin with. What next? If the force withdrawals, how will the state regain sovereignty, both in reality and legally?

2. This policy can and will be used against the US and its allies. This legal regime would seem to give Turkey the right to invade Iraq to go after the Kurds; or give Russia the right to intervene against many of its neighbors; give Afghanistan and Pakistan the right to attack each other - what about India and Pakistan and Kashmir? Cuba could conceivably legally take action against the US because of the Cuban exile threat. China-Taiwan. The list goes on and on. It will seemingly allow not just strikes against the actual threat - but action against the host government itself. It's not hard to see how this could be used to start wars of conquest.

4. The inclusion of cyber threats could be particularly problematic and would lead to, IMO, the end of the internet as an open collaborative medium.

5. What about efforts to strengthen sovereignty? Maybe instead of building a legal regime that would authorize punitive actions, it might be better over the long term to build one designed to strengthen sovereignty in ungoverned areas.

In all, I found the piece has some nuggets of good and thought-provoking ideas, but the fundamental premise and analysis is flawed. It seems to me to come from an overly idealistic perspective and the intent appears to me mostly about increasing US freedom of action in the near term in a few specific cases without enough thought to long-term consequences and effects elsewhere in the world.

Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?

[jmm99]

from Entropy
.... one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions.

Not necessarily so. A nation can have full and absolute sovereignty over internal affairs, so long as the exercise or non-exercise of that sovereignty does not adversely impact other nations in a material way. The same concept can be applied to individuals - we call that libertarianism.

The key concept behind Chertoff's ideas is reciprocity - as to which, there are a number of "Golden Rules" available for selection.

Reciprocity is the basic concept behind the "Laws of War" - since, as many here have already pointed out, those "laws" lack any other means of enforcement.

As a related example, take the GCs - accept and apply them and you should get reciprocity. Do not accept or do not apply them and you should not expect reciprocity from others.

Yup, in I Law, all pigs are equal (in theory) - but we all know the rest of the sentence - "...but some pigs are more equal than others."

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Now, I'll retreat back into my shell, since you all are doing a job on this number. When I posted the OP, I thought it would be nice if a couple of people commented - was I wrong.

[Entropy]

Not necessarily so. A nation can have full and absolute sovereignty over internal affairs, so long as the exercise or non-exercise of that sovereignty does not adversely impact other nations in a material way. The same concept can be applied to individuals - we call that libertarianism.

Libertarianism, particularly related to individuals, is quite different from what Sec. Chertoff is advocating, IMO. We are not talking about holding states accountable for their actions - that is already the standard - we are talking about extending that accountability to things states often cannot control. There's no precedent for that in Libertarianism that I know of and regardless, there is the fundamental difference between the nature of a state and the nature of an individual.

The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.

[Ken White]

...Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?

but as I said above:

"...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." and:

"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."

Plus, as you said:

"So Sec. Chertoff is trying to have it both ways IMO - one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions."

True and as you later said:

...We are not talking about holding states accountable for their actions - that is already the standard (*) - we are talking about extending that accountability to things states often cannot control...

The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.(emphasis added / kw)

Not much new under the sun, is there...

(*) When it suits, when it suits...

[jmm99]

Guess I need to clarify design and intent on what I mean by reciprocity. For the moment, leave on the shelf what the other Mike (Chertoff) means (might mean) by reciprocity. To further clarify, I am not a theorist; I deal with legal practice - how does it work ?

Starting here:

from Entropy
The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.

There is no reciprocity unless it is practiced - that is the test for the existence of reciprocity. In short, unless there is reciprocity in reality, there is no reciprocity.

Now, if you are arguing that reciprocity can only be a theory and that reciprocity cannot exist in reality, that would be a logically consistent argument - and also contrary to the reality of our human existence. We reciprocate every day.

Example 1: You keep "your" young chimps in your back yard; I keep "my" young chimps in my back yard - no young chimp trespasses over the hedgeline. Could do this by a written agreement, a handshake or just do it (implicit understanding). Thus, reciprocity in practice - no young chimp trespasses. Golden Rule applicable: Do unto others what you would have them do unto you.

Change the facts: "Your" young chimps keep jumping over the hedgeline; "my" young chimps have not been jumping over the hedgeline. Don't mean nuttin to me whether you own them, whether they are squatters, or whether they are invaders - the threat and damage to me is the same. Thus, no reciprocity in practice - young chimp trespasses by yours; none by mine.

My remedy (since no court can enforce orders concerning young chimp trespasses). Forgot to tell you - I have a 600 lb. gorilla who lives in my backyard, who dislikes trespassing young chimps; and, though old and grizzled, is still very quick - and is adept at killing young chimps. Yup, grossly unfair to you, but it's my hypothetical. Golden Rule applicable: Do unto others what is needed to prevent them from doing what they are doing to you.

So, there will be a real penalty for not being reciprocal in reality - I leave the preventive actions which might be taken by the 600 lb. gorilla to your imagination.

If you do not like my I Law rule in practice, tell me what I Law rule you want to put into practice to control young chimp trespasses. Something from a old German about no critique being complete until a better alternative is offered.

You might also think Cambodia & Laos from ancient days; and Pakistan, Syria, Lebanon & Gaza in current events.

I can answer this:

from Entropy
Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?

Because a lot of meatheads in the I Law field, including the ICJ, are non-reality based - as the other Mike points out in his article at several places.

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PS: I used "libertarianism" (a concept of human relations in practice). You used "Libertarianism", which is a non-monolitic set of political theorists who disagree with each other as much as they agree. Don't care what the Libertarian Party has to say about this - even though I often vote that line - truth in lending statement.

[Entropy]

Jmm,

Thanks for the reply!

I agree that reciprocity is both a theory and works in practice. My concern is that Sec. Chertoff appears to be demanding reciprocity from those who are least able to provide it. Reciprocity would seem (to me, anyway) to require that both sides have the actual capability to reciprocate in manner desired. If one side does not, what then?