Was Russia Exercising a Responsibility to Protect?

With Russia justifying its actions in Georgia through reference to the Canadaian "Responsibility to Protect" doctrine, it's worth reminding ourselves what this doctrine actually says about international interventions to protect civilians. This doctrine, first laid out in the report of the International Commission on Intervention and State Sovereignty and later endorsed by the international community in the 2005 Millennium Document, begins by spelling out the "threshold requirements" for such an intervention - in other words, the conditions under which human rights abuses inside a state justify grounds for breaching the territorial integrity of that state through the use of force. Such an intervention must be in response to:

"large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or

large scale "ethnic cleansing," actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape."

The report demurs on what constitutes "large-scale loss of life"; and if it was justifiable for NATO to enter Kosovo after only a few hundred Kosovar Albanian civilians had been killed, then it might be said that Russia has something like a valid claim in this case.

But the R2P doctrine is not simply a green light for great powers to violate small states' territorial integrity whenever they can reasonably claim civilians are at risk. Rather, it carefully balances humanitarian concerns with the UN Charter regime. Intervening governments must not only demonstrate just cause, but they must meet six other criteria as well:

Right Intention: The primary purpose of the intervention must be to halt or avert human suffering...

Last Resort: Every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored.

Proportional Means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the humanitarian objective in question.

Reasonable Prospects: Military action can only be justified if it stands a reasonable chance of success, that is, halting or averting the atrocities or suffering that triggered the intervention in the first place.

Anyone can see that Russia's intervention satisfied the last of these criteria quite nicely. And although the jury is still out, for the sake of argument let us accept Russia's claim that the Georgian government's crackdown on separatists in S. Ossetia was indiscriminate and thus constituted just cause for an intervention. Even if so, it is hard to argue that Russia's means have been proportionate to its goals, that Russia exhausted any non-military avenues first, or that Russia has actually acted solely out of humanitarian objectives.

Perhaps most importantly is the question of right authority: who decides on the legitimacy of such a move? The Commission recognized the validity of such arguments, then made by Russia and China, that a humanitarian intervention norm would create a slippery slope toward the dissolution of the non-aggression norm entirely. So they devoted an entire chapter to the question of the authority to determine whether such an intervention should take place. It first stresses that to be genuine, humanitarian intervention must be multilateral, not unilateral; that it ought to be endorsed by the Security Council; and failing this (as it did in the case of Kosovo and now Darfur) could be legitimized under a Uniting for Peace resolution in the General Assembly. Point being, a single state exercising this "responsibility" on its own, without even a discussion among its peers, would negate the concept entirely.

Specious Russia's claims may be, but it is heartening to see them made. Paying lip service to a new international norm, even as a smoke-screen, legitimizes that norm. But it also provides the international community with an opportunity to apply and clarify the norm itself. This is greatly needed in the case of R2P, and the events in the Caucasus provide a useful test case.

Hope for a New Republic?

Emmanuel Kant forsaw a march of history that would lead to a cosmopolitan world government, but also was one of the first to suggest that in the interim, a global international scene consisting solely of liberal republics would greatly increase stability and security throughout the world.

The reason for this, Kant supposes, is that republican peoples are less likely to go to war, because:

This would mean calling down on themselves all the miseries of war, such as doing the fighting themselves, supplying the costs of the war from their own resources, painfully making good the ensuing devastation, and, as the crowning evil, having to take upon themselves a burden of debts which will embitter peace itself...

But, though no two liberal republics have fought each other in over 200 years, they have nonetheless waged plenty of wars; both offensively and defensively, and against both more authoritarian regimes, native populations, and secessionist movements.

Why is this, and more importantly, is it preventable?

I would argue that the reason for this continued warlike behaviour by liberal republics, including the United States, is twofold: First, none of these so-called republics are very republican; though the population may elect a leader and an executive, once that leader is in power, be it for 2 years, 4 years, or what have you, they function as an autocrat- in Kant's words:

For the head of state is not a fellow citizen, and war will not force him to make the slightest sacrifice so far as his banquets, hunts, pleasure palaces, and court festivals are concerned. He can thus decide on war, without any significant reasons...

Truly, one might observe without a trace of cynicism that no fundraising dinners have been canceled of late, no Texas hunting trips or escapes to Kennebunkport have been missed on account of the trivial matter of a 5 year war that has cost the lives of a mere 4000-odd soldiers on foreign sands...

In the second place, the populace also fails to meet Kant's criteria in that neither the whole population, nor even a large or representative slice of it, is required to bear the misery of fighting; they are also not specifically required to make good the resultant devastation, though one can suppose that through taxation and the potential for war rationing, the populace will indeed bear the domestic financial costs of the war...

In the United States, as in most liberal democracies, our modern wars are fought by a small percentage of professional soldiers, led by an elite officer corps. These armed forces, even the massive ones that exist in America, have much more in common with the mercenary troops of yore than with those truly citizen-soldiers such as marched in the phalanxes of Sparta and Athens, and the volunteer Federal and Confederate regiments of the Civil War.

Having discovered this deficiency between Kant's ideal liberal republic and today's liberal, democratic, capitalist states, can your humble scribe offer a prescription for change?

But of course. A two-fold problem calls for a two-fold solution.

First off, while it's no doubt convenient to foist off the day-to-day administration of the State to a group of corrupt, inefficient bureaucrats, the decision to commit the armed forces of the Nation to combat should be subject to a national referendum; today's modern technology makes it entirely possible that one could vote, swiftly, securely and uniquely, via, say text message:

To: White House (703-xxx-xxxx)
From: Cleitus (202-xxx-xxxx)

Re: War in Ossetia

Vote: NO

Supposing that one will not now go to war without the consent of the majority of the citizenry, one would like to ensure that those citizens are not signing up to wars which they themselves would not be willing to fight.

The simple solution would be to mandate a limited period of military service for all persons who are mentally and physically capable, and then make them liable, in the future, to be called into service to augment the standing forces for a term of 3 years or so, and of course to be activated in a time of war.

Full citizenship (ie, the right to vote for or against a war) should be limited to those citizens who have served, or are serving - those who are exempted for mental or physical reasons should have no say, lest they bring down upon the heads of the Nation's warriors an undesired battle.

Both these prescriptions are easily manageable with today's technology; whether true republican spirit is palatable to either America or its rulers is less certain.

Clarifying the Law Re. Treatment of Individuals Allegedly Detained by Russia

At Lawyers, Guns and Money, Robert Farley has some intel on the alleged capture of at least one American by Russian forces in Georgia. If true, and if this was a member of the US military fighting with Georgian troops, this would be a pretty big deal. (Of course the US will disavow this, claim he was at best a private contractor not a combatant and likely do nothing to protect him... so far no coverage of this in the Western press.)

In comments at Farley's blog there are various claims that if he was not a regular combatant this prisoner would have no rights under the Geneva Conventions. This is false. The Geneva Conventions apply in full to international armed conflicts, of which this is one. They apply to all persons who fall into the power of the enemy, not just lawful combatants. If not taking part in hostilities, this person would need to be treated as a civilian and repatriated to the US. If taking part in hostilities unlawfully (that is, without the authorization of his government) the person could be held and prosecuted, but all the provisions regarding the treatment of detainees, including the right to due process, would apply to him nonetheless.

Besides, even if this weren't an armed conflict in which the full conventions applied, Article 3 of the four 1949 conventions would still apply - this is where basic guarantees of humane treatment are laid out for everyone, not just for lawful combatants.

Of course, the US has given up its right to any moral high ground with respect to its own detainees by disavowing/reinterpreting international law. US hypocrisy, however, doesn't invalidate Russia's treaty obligations, and we shouldn't be acting as though it does.

As an aside, Dan Nexon has a fantastic post up at Duck of Minerva outlining the Russian perspective on recent events - a nice antidote to the propagandistic pro-Georgia bent of much of the US news coverage.

Over the Brink

Friday, the Times Online reported that Russia and Georgia moved “to the brink of war” after the initiation of hostilities. By evening, war had been officially declared by both sides; yet yesterday morning, I woke to find out that Georgia and Russia were merely “nearing all out war” with the mobilization of Russian warships and commencement of bombing raids. By afternoon, Bloomberg had reported that Russia (at least) was “waging full-scale war.”

At what point does a pair of countries cross the threshold between almost being at war and actually being at at war? Important question since, among other things, the laws of armed conflict only apply to wars and occupations, not to skirmishes, riots, or low-intensity conflicts. (Human Rights Watch: there's definitely a war happening, and the rules definitely apply.)

Political scientists answer this question through reference to the body count. The standard threshold between low-intensity political violence and a genuine war, for the purposes of studying wars, is generally set at 1,000 battle deaths. However political scientists differ on whether this is deaths per side or deaths total, and whether “battle deaths” includes collateral damage against civilians, or simply intentional deaths by targeting.

Even then, it can be pretty hard to sort out who is dead. Currently, Russia is reporting 2,000 dead; but then, they’re also claiming that Georgia is committing genocide. Georgia makes a variety of counter-claims.

Is the willingness to target civilians, possibly, the difference between "war," "all-out war" and "full-scale war?" Hmm.

Guns of August?

Curiously enough, I was recently pondering the question of whether granting autonomy to seccessionist movements increases the security and stability of both the break-away entity and the state from which it is seeking independence.

Certainly the latest developments in South Ossetia would appear to lend some credence to this line of thinking; attempting to maintain control over such a state, especially when they are backed by a regional hegemon appears likely to lead to conflict.

Georgian forces attacked to "restore constitutional order" in the separatist republic, shelling the capital of Tskhinvali with Grad Multiple Launch Rocket System (MLRS).

Russian tanks and aircraft have retaliated, ostensibly to protect Russian peacekeepers on the ground in South Ossetia. At least 10 of those peacekeepers were apparently killed by the "steel rain" that fell on Tskhinvali, giving the Russian Bear the perfect excuse to flex its military muscle.

U.S. forces have been engaged in military exercises in Georgia recently, and there are at least 127 US advisers still in the country. Georgia has participated in the Coalition of the Willing, providing the 3rd largest contigent of forces in Iraq; 2000 troops, which is more than twice the South Korea presence and an order of magnitude greater than Australia. One might be tempted must evaluate this involvement with a realist view that with such a contribution, they have sealed the loyalty of the U.S. to back them in any conflict with Russia.

For the time being, the U.S. and Russia are vowing to seek a negotiated end to the conflict, whose timing, as the world focused it's intention on the opening of the Olympic Games, was hardly a coincidence.

The outcome of this struggle will have repercussions both locally, (for not only the South Ossetians, but also for Abkhazia) and around the world as separatist entities, including Kurdistan, Southern Sudan, and the Sri Lankan Tamil movement evaluate their positions relative to the states from which they are seeking independence.

One is also obliged to wonder at the difference between Kosovo, a recognized separatist region, and South Ossetia; is recognition in the international community merely a Hobbesian matter of expedience to the greater powers? Or is there a Grotian "rule of law" that would apply to all those seeking independence, whether they be African, Slavic, Islamic, or Sikh?

Friday Star Trek Blogging.

The crew of the Enterprise NCC-1701 D ruminates on NGOs, celebrity campaigns, and human security.

Hamdan Verdict

Boy, that was quick. The New York Times reports that Salim Hamdan has been found guilty in a split verdict.

Daniel Graeber at War Crimes Blog has more, though he seems to think this trial was the first since WW2, which we know is wrong. The Moderate Voice has a great round-up of other blog responses to this story here.

John McCain says the verdict "proves the system is working." To see how wrong he is, don't miss Kevin Heller's post at Opinio Juris explaining why the charges in Hamdan make no sense at all in the context of existing treaty law on armed conflict, to which McCain has claimed to be committed. In brief:

"There is no question that the military commissions have jurisdiction over the crime of “murder in violation of the law of war,” defined by the Manual for Military Commissions as “intentionally kill[ing] one or more persons, including lawful combatants, in violation of the law of war.” That war crime only exists, however, in the imagination of the United States: it is not a war crime under IHL for a unprivileged belligerent — the correct label for the mythic “enemy combatant” — to kill a soldier.

Under IHL, in other words, an unprivileged belligerent can only be prosecuted (1) for a domestic crime if his act would have been legal for a privileged belligerent, such as killing a soldier; or (2) for a war crime if his act would have been illegal even for a privileged belligerent, such as killing a civilian. What he cannot be prosecuted for is (3) a “war crime” whose underlying act would not have been a war crime if committed by a privileged combatant."

'Nuf said 'bout that.

Fan Mail

Michael Innes has written a glowing review of Elected Swineherd at Complex Terrain Lab. Referring to me among others as a "gent" (seemingly Mike has intel as to my gender! OMG, our cover is blown! oh, never mind, he refers to Cleitus the Black as a 'gent' as well...), he commands his readers to immediately subscribe to our blog, a sentiment with which we heartily concur. [Click the button at four o'clock to comply.]

Actually, this is high praise coming from CT Lab, one of the best post-9/11 security blogs out there and one of my regular reads. Innes leads a community of scholars, commentators and bloggers who reflect upon and post about "the transformation, newness, or changing character of war, simultaneously striving to identify elements of continuity and change, and to redress emergent practical and conceptual imbalances in the way war is governed." Their emphasis on the intersection of international law, security policy and social science will be of particular interest to ES readers: in fact the blog is an outgrowth of an important project begun at the Maxwell School at Syracuse to reconsider the laws of war in the face of asymmetric conflicts:

Conflicting political and security metaphors of spatial knowledge, simulation and control - "failed states", "human terrain", "terrorist sanctuaries" - have revealed deep divisions over the perception and management of threat... [and] challeng[ed] social scientists to investigate and illuminate the textures, nuances, implications and consequences of variable geometries of violence.

Besides being already chock full of substantive and witty observations (check out the latest post on the whereabouts of Ratko Mladic), Innes has issued an open invitation to ES bloggers to contribute from time to time at CTLab, so look for an occasional post by Cleitus, Empedocles or myself over there.

Beastly Behaviour?

Well, despite having soldiered around the globe and spent a great deal of time among my continental brethren, I must admit that even I had to do a little research into the term beasting, which has a variety of connotations according to the Urban Dictionary, and which is described in more detail in this BBC report, which mentions running and push-ups while wearing gas masks and chemical resistant suits (a miserable experience, to be sure) running with rifles held overhead, and doing calisthenics while holding a log.

Harsh? Perhaps... But consider this course of punishment; the Royal Marine Commando Course. Many of the physical challenges that are simply a part of training could certainly be considered beastly, but the difference is, they represent obstacles that must be overcome to achieve a goal.

Beasting in and of itself is simply the use of intense exercise to condition a young, recalcitrant person not to behave in certain manners, such as performing poorly during normal training, smarting off to his superiors, etc.

This soldier didn't die because he was beasted; he died of heat stroke (among other things, because he had Ecstasy in his system - something he probably hadn't mentioned to his superiors.) He also may simply have had a low tolerance for heat stress; (some people do) I have personally seen several otherwise fit individuals laid low while making a standard march or run due to that fact. He would probably have suffered the same effect had he been undergoing any other intensive exercise under the same condition.

In the final analysis, this case, like previous instances of hazing and hard training in the U.S. will result in the Brits seeing more administrative punishment (restricted liberty, reduced pay), a softer and less disciplined soldier, and senior staff reminiscent for the bad old days.

Floggings? Well, at least with the lash, we did have the rum ration... Now it's a cyclic dose of Ambien and amphetamines, but only for pilots.

Besting "Beasting"

BBC reports on the acquittal of Army personnel whose junior colleague died after being subjected to harsh physical exercise as punishment for a misdemeanor. Pte Gavin Williams, 22, of Hengoed, Caerphilly, collapsed and died at Lucknow Barracks in Tidworth in 2006.

Admittedly, I need to know more about the details - I don't mean to be insensitive to this family's terrible loss; and it does sound like these soldiers went too far. But will someone who has spent time in the military explain to me and the rest of the ignorant civilians how "beasting" is qualitatively different from disciplinary exercise generally? And if it's not to be however-many pushups or a long hike for insubordination, what are we back to in order to keep recruits in line? Flogging?

Olympic Security

With all eyes on Beijing's cleanup efforts in advance of the Summer Olympics, let's not forget the environmental obstacles to prepping Whistler, British Columbia for the 2010 games this winter. Above, a mudslide on the Sea to Sky Highway put a damper this week on efforts to turn a treacherous, winding two lane road (the only one linking Vancouver's International Airport and Whistler) into an infrastructure capable of handling Olympic-volume traffic.

Though, one might also say, this is just Mother Nature doing the contractors' work for them...

When is a War a War?

One of the first things you learn about the Geneva Conventions is that they only apply in situations of armed conflict. The problem is that "armed conflict" isn't really defined in treaty law, and this is one of the reasons that some have proposed updating or clarifying the rules of war to take account of new types of war.

On this point, it will be important to keep an eye on the Salim Hamdan trial in Guantanamo, Cuba and third parties' reactions to it. Hamdan's prosecution as a "war criminal" will depend on the prosecution arguing al-Qaeda and the US were engaged in an armed conflict during the period of his active involvement with bin Laden. Human Rights First reports on opposing views presented at Hamdan's trial:. The prosecution argues that the laws of war applied as soon as al-Qaeda declared war on the United States, as early as 1996, therefore Hamdan's work with al-Qaeda prior to 9/11 constitutes war crimes:

"On Monday, the prosecution debuted “The al Qaeda Plan” – a made-to-order compilation of al Qaeda propaganda videos found on the Internet and narrated by the government’s counterterrorism expert, Evan Kohlmann. The movie was made, among other reasons, in order to prove the government’s theory of when the armed conflict with al Qaeda began. The seven-part, ninety-minute video, which the government apparently plans to use in many Guantánamo prosecutions, narrates the story of the Afghan jihad against the Soviets (although it excludes any reference to U.S. support of the jihad against the Soviets), bin Laden’s activities in Afghanistan and Sudan, the USS Cole bombing, the Kenya Embassy bombings, and the September 11 attacks."

The defense argues that the start of an "armed conflict" depends on the response by a government - in short, that the Geneva Conventions would apply only after the US declared war on al-Qaeda in return, on September 12, 2001.

"Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger application of the laws of war. Defense expert Geoffrey Corn, a retired Army judge advocate, former Pentagon law of war expert and now a law professor, testified that, under the laws of war, one of the critical factors that determine whether an armed conflict has begun is the response by a government to a particular attack... Corn testified that the United States’ reaction in September-October 2001 to the 9/11 attacks triggered the application of a law of war framework, and the United States thus was in armed conflict at that point with the Taliban and al Qaeda in Afghanistan."

Both these lines of argument are a distraction, I think, since they suggest that a) the "war on terror" is definitely an armed conflict, we just don't know when it started (but this is actually a topic of debate among international lawyers); and that b) if an armed conflict is occuring, Hamdan must be a war criminal. Not at all clear to me if this makes sense - Hitler's driver wasn't prosecuted at Nuremberg, he was called as a witness.

The real irony is that a government who has spent years trying to pretend the laws of war don't apply to this conflict is now trying to use them against its enemies. Perhaps the real goal is to confuse people entirely about what the laws of war are.