Governance....

(Right, Somalia.... why didn't I think of that?)

Ok, so the video is amusing. And in fact, the beaches of Somalia can be amazingly beautiful, as we'll see later on. But the real challenge of Governance still remains - and indeed, the ultimate legacy of Regan / Thatcherism may be that the notion that Government is problem, not the solution (and, inter alia, taxes are bad / evil).

In my view, this is deeply unhelpful, especially in states which are facing crises. And there's plenty of them to go around. Consider the debt crises in Greece and Ireland - or indeed the widespread public sector strikes in the UK tomorrow, let alone the US Congress playing chicken with the debt ceiling. And this is before we look at places with "imperfect" governments - anywhere from Afghanistan, where the Central Bank Governor fled in fear of his life after investigating the looting of Kabul Bank, to Angola, where a resource boom has created one of the world's most unequal societies.

Governance - fundamentally, the competence of the government combined with the consent of the governed, is critical to long term economic growth and social stability. Massively unequal countries tend to have revolutions, as do kleptocratic ones - just ask Tunisians or Yemenis. But the solution is not less government or more government: it is better governance, fuelled by representative, responsive institutions, in which corruption in particular is not tolerated.

(One of Somalia's beautiful beaches. Attracts surfers and tank-spotters.)

Legality of pre-emption is back....

(Prof. Philippe Sands QC: brilliant, but in this case, I respectfully (and uncomfortably) disagree. A bit.)

Legality of pre-emption is back - and as usual, no-one can agree. The Guardian's coverage is pretty sensible, and I'll come to the substance of the argument over whether allied air forces in Libya can continue to attack Gadaffi's ground forces within the terms of UNSCR 1973 in a minute.

But first can we just cherish the fact that we're having this debate at all? The notion that abstruse debates about the legality of the use of force are now taking place in the press at all is wonderful, and a testament to the work of people like Professor Sands, Professor Francoise Hampson, Professor Elizabeth Wilmshurst CMG, and Professor Charles Garraway in making the role of the law in the use of force so politically important. Thank-you all - it is a wonderful step forward.

Right: Pre-Emption.

There is a long-running argument amongst international lawyers over whether or not you can act pre-emptively in self-defence. In practice, most of the argument over pre-emptive action (more properly, "anticipatory self-defence") comes down to a ferocious debate over which side of a fence are you on: does a State have to absorb the enemy's first strike, or can it blunt it by attacking a State that is in the final stages of launching an attack?

(1967 Pre-emption, Israeli style: Egyptian AF transports destroyed.)

The classic case is the 1967 Six Day War, in which the Israeli Defence Force mounted a pre-emptive attack on Egypt, believing that Egyptian President Nasser having evicted the UN Emergency Force from Sinai and having closed the Straits of Tiran was about to invade Israel. This led to decisive Israeli victories against Egypt, Syria and Jordan, with Israel occupying the Sinai Peninsula, East Jerusalem and the West Bank, and the Golan Heights. Militarily, it was magnificent performance, but legally it was a shambles: the evidence today is that Nasser didn't intend to attack at all, but was posturing for domestic support.

Oops.

Which is why I put myself in the camp that says you have to in effect ride the first punch before counter-attacking (and this could just be the first artillery rounds crossing the border). And those lawyers who favour the right to pre-empt are almost exclusively in the camp that recognises the danger that a broad power of pre-emption would grant - namely, that the greater the margin of appreciation given to those using their right to "anticipatory self defence", the more likely you are to provide a charter for the unbridled use of force.

(Oh dear.)

This is where the Bush Administration's US National Security Strategy of 2002 and 2006 went so far off the rails: it articulated a doctrine of "pre-emptive warfare". At one level, this takes anticipatory self-defence to the logical conclusion: if something could become a threat, it'll be quicker and easier to deal with it now, rather than later.

This is probably true, but it somewhat misses the point that the use of force in such a situation was rendered completely illegal by the passage of Art 2(4) of the UN Charter. In other words, the US National Security Strategies of 2002 and 2006 were in fact premised on the Bush Administration's willingness to explicitly break international law.

 (One opposed to more billboards.)

Libyan So What?

Prof. Sands' point that pre-emption is a slippery slope is absolutely correct. But I take issue with this quote in the Guardian:

"It is difficult in international law to argue for a pre-emptive use of force to protect civilians from a possible threat that might arise in the future. We don't know if there is evidence to show that a failure to attack Ghadaffi's forces would lead to a regrouping that would lead in turn to attacks on civilians."

I would suggest that to the contrary there is 42 years' worth of evidence that Gaddafi's forces have led a more (and generally rather less than) benign reign of terror over his country. This to me leads me to an expansive understanding of the powers conferred to the coalition of the willing by the UN, and with it, the conclusion that Gaddafi forces are being used to oppress civilians, and therefore that attacking them at a time and place of the allied air forces' choosing probably meets the requirements of UNSCR 1973 OP4. As such, my disagreement with Prof. Sands is about nuance, not the law specifically.

But Prof. Sands broader point must be right: if not yet, then pretty soon the western air forces are going to be testing the outer boundaries of UNSCR 1973. Accepting as I do, Malcolm Shaw QC's point that these boundaries are elastic, they are not infinitely so. So whilst hoping that the Gaddafi regime collapses before we're faced with the problem of exceeding the powers granted, the correct thing if rebel ground forces cannot overthrow the Gaddafi regime alone, is to return to the UN Security Council for increased powers if that is required. I'll look at how and what these powers would look like in a future post.

Libya - a case for R2P?

(F3s finale over Libya? Sadly, probably not. Fuel-to-Noise. Go!)

There's been some talk about setting up a No-Fly Zone (NFZ) over Libya in the last few days. Whether this is a good idea militarily is a debate for others to have, but the legal position is clear enough: if the Security Council passes a Chapter VII resolution under Article 41 or Article 42, then it is legal to use force to enforce it.

If the Russians veto a draft resolution permitting an NFZ, then the questions around humanitarian intervention and R2P will resurface. As I blogged last week, there's a serious discussion to be had, but in my view there is an humanitarian exception and an NFZ is a decent way to start protecting the Libyan people from the depredations of the Gaddafi regime's death-throws. It is unlikely to be enough - Libya is vast and the number of aircraft that would be required to have standing patrols over all of the airfields under Gaddafi loyalist command, along with the SEAD (Suppression of Enemy Air Defences) support to ensure that surface to air missiles stayed on their launch rails, would be immense.

(More heroic F3 turning and burning into the sunset....)

But it would be a start.

Am I my brother's keeper?

(No sign of Muammar. An oversight.)

Cain, Abel and Muammar Gaddafi are perhaps not the most obvious of bedfellows. But Cain's riposte to God after killing the mysterious and unexplained death of Abel (a matter that remains sub judice)* is as pertinent now as it was to biblical author: what responsibility do we carry singly and jointly for the well-being of our fellow human beings? Relatedly, how does this operate in a world in which Article 2(7) of the UN Charter restates the most ancient tenet of international law - non-interference in the internal affairs of another sovereign state? In short, are we the keepers of our Libyan sisters and brothers as they face the threat of annihilation by their own government in a (final) spasm of murderous repression? 

Let's look at the notion of non-intervention, at the doctrine of humanitarian intervention and the notion of an international "Responsibility to Protect", known as R2P in txtspk.

Non-Intervention - the international community's prime directive?

If non-intervention is a cardinal rule, then Cain is right and as long as it happens next door, it's no concern of mine: I am implacably not my brother's keeper.

Some countries argue that non-intervention is the cornerstone of the international system, and that this has been the case for centuries. This is, of course, palpably risible nonsense. Advocates of non-intervention generally mean that they are in favour of non-intervention in their affairs; it is therefore no surprise that the strongest and most persistent advocates of the non-interventionist mantra include PR China, North Korea, Saudi Arabia, Cuba, Sudan and Zimbabwe, all of which have human rights records that they would wish to protect from outside scrutiny or interference. 

It is also important to note both that history is based around countries intervening in each others' internal affairs, and that intervention spans a much wider ambit than simply the use of force - sanctions, consumer boycotts, trade agreements reflect power realities and are used by stronger states to coerce weaker ones. Try asking an Irish or Greek politician about the amount of non-intervention that they’ve had to accept in their internal affairs in the form of a financial bailout – and no shots were fired. In other words, intervention in the internal affairs of other states is the norm, and the non-interventionist language in Article 2(7) is the aberration. 

 (Do we protect them? If not you, who? If not now, when?)

Humanitarian Intervention

Back in the early 1970s the International Law Association (ILA) created a framework for humanitarian intervention** which was picked up over the next decade led by Fernando Teson, an Argentine lawyer proposed along with some American lawyers a doctrine of humanitarian intervention. As a legal proposition, humanitarian intervention proposes an exception to the ban on the use of force in Article 2(4) of the UN Charter in cases of genocide, crimes against humanity or massive human rights abuses where there is no option due to time or because the Security Council is deadlocked. 

All good. (Except that Teson and his proto-neo-conservative American chums decided that not being a democracy was a gross violation of human rights, and then used this to propound the deeply problematic notion of "pro-democratic wars"; Teson's supporters tended to find themselves on the hawkish/paranoid Republican right, some of whom went so far as to suggest a NATO invasion of central Europe to drive out the Soviet totalitarians. No prizes from your blogmaster for guessing the likely outcome of that particular policy choice if you'd tried to implement it.)

In one of those strange historical oddities,*** Teson's champions today are on the left, under the banner of solidarism. Nicholas Wheeler's "Saving Strangers" is the classic exposition of the need for a framework for where there should be an exception to the UN Charter rules on non-intervention and bars on the use of force. As Wheeler shows, the three classic Cold War interventions that could have been presented as humanitarian interventions (India in East Pakistan/Bangladeshi War of Independence, 1971; Tanzania in Uganda, 1978; Vietnam in Kampuchea, 1979) never claimed any humanitarian rationale at the time. Kosovo in 1999 is a partial example of humanitarian intervention, but some structural elements were not in accord with the ILA's 1974 blueprint. Similarly, UK/US/FR extending UNSCR 688 to (and arguably beyond) breaking point for Operation Provide Comfort with the Northern and Southern No-Fly Zones over Iraq.

(Op Northern Watch - aka heroic Jags over northern Iraq. Ahh....)

So under humanitarian intervention, you can present yourself as your sister's keeper, but you don't always get a chance to do anything about it - and if you do want to do something about it, then you need to make sure you work through the ILA check list, and crucially, you need to make explicit that it is a humanitarian intervention at the time that you do it. 

Bottom line: humanitarian intervention provides an optional route for States that want to intervene - if the world is indifferent, humanitarian intervention doctrine does not require the community of nations to do anything about massive human rights violations. Just ask Jim Hacker - he explains it far more eloquently than me; the Russians were indeed too strong...

Responsibility to Protect (R to P, R2P)

The 2005 UN World Summit outcomes document specifically recognised the need for a responsibility for collective action to stop "genocide, war crimes, ethnic cleansing and crimes against humanity" - which are all defined in the ICC Rome Statute. This is the genesis for Responsibility to Protect - a key turning point in international law. 

Paragraph 139 of the 2005 World Summit outcomes states in part:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 

Which is a real drafting hodgepodge, betraying the lack of unanimity in the international community. The answer appears to be that there is no unilateral right of intervention, the Security Council should do the right thing but there may be a regional organisation get out clause. Or not. 

So R2P is not clear yet: NGOs are pushing for clarity and for the world to move towards a Responsibility to Protect. Let's see how we're getting on. We need to speak clearly that the international community does have responsibilities and Libyan-style repression is a crime, pure and simple.

* This is a legal blog. You get legal jokes - bear with me, some of them are even funny.

**The ILA's Third Interim Report of the Subcommittee on the International Protection of Human Rights by General International Law, New Dehli, 1974

***For example the manner in which the British Conservatives have moved from being the principal supporters of British membership of the EEC to being dominated by anti-EU forces, whereas the British left moved from visceral anti-EEC agitation based on the notion that the EEC was an anti-worker capitalist plot to being broadly in favour of the EU as a method of promoting workers' interests.