Liberalization before institutionalization: The case for autocratic democracy

In the course of reading Carsten Stahn's (pretty lumbering) book The Law and Practice of International Territorial Administration, the following excerpt is encountered:

What is needed, in the immediate post-conflict period is not quick elections, democratic ferment, or economic "shock therapy" but a more controlled and gradual approach to liberalization, combined with the immediate building of government institutions that can manage these political and economic reforms. (Roland Paris, At War's End)

...or, phrased more succinctly, "institutionalization before liberalization."

That, one is tempted to adjudge, sounds very reasonable in the first instance.  It is at once logical and legally sound.  It is consonant with the idea that democracy cannot be imposed but must perforce evolve: It has to be organic and autochthonous, and it can only develop as its foundations are gradually internalized among the dramatis personae (or, in modern parlance, the stakeholders).  Stahn not only criticizes some territorial administration projects for having failed to secure the locals' backing (which is "old news") but shrewdly distinguishes between domestic consent and domestic support.  He adroitly accentuates the importance of the latter as a conditio sine qua non for an international governance mission to stand any chance of success.

Yet, on closer inspection the above postulates can be descried as suffering from a number of deficiencies and assumptions.

For one thing, the reasoning is a standard Catch-22.  The naissance of democracy is contingent on strong domestic "ownership" and local "capacity-building" (the buzzwords of "good governance" de nos jours); but how are these possible without the existence of a environment of liberalism, pluralism, and--yes--democracy?  In other words, how can people freely decide what type of a government they wish to have (viz, internal self-determination) if there is no opportunity for them to express their views by way of a one-person-one-vote mechanism operating among a politically-educated electorate?

Attempts to reform or rebuild the economy in the administrated areas along the lines of the free-market laissez-faire model are also lambasted, on the grounds that doing so is contrary both to human rights standards (self-determination, again) and the laws of occupation.  That may well be correct.  However, territorial administrations are necessarily long-term endeavors (v. infra).  As such, they are also expensive endeavors.  Both the administration and the reconstruction (one will recall that such projects are most frequently undertaken in the aftermath of a devastating and destructive conflict) require a continuous inflow of exorbitant quantities of money.  Donor conferences and charity pledges only go so far, and mostly last until something more current (and bloody) grabs people's attention (another conflict elsewhere, perhaps).  Whence, then, are the funds to be procured?  The answer is: private investors, especially via F.D.I.  However, foreign investors demand stability, transparency, certainty.  They need some manner of guaranty.  An environment in which neither the political nor socioeconomic order is anywhere close to solidification does not lend itself well at all to inspiring investors.  Without such investments though, it is dubitable whether the administrators or the domestic decision-makers--such as there be--can foster a domain conducive to the emergence of a free, liberal, democratic society.  The whole exercise becomes a matter of petitio principii.

Next comes the no small matter concerning the timeframes involved.  Democracy does not evolve in a matter of years (q.v. the amount of time the South needed to accept desegregation); sometimes it does not evolve at all (pick many former U.S.S.R. states or any post-Arab Spring country, with the cautious exception of Tunisia).  Stahn and many others advocate a policy of "persuasion": convincing the local stakeholder to gradually internalize the ideals of democracy, etc.  They suggest the first step be the establishment of an independent and impartial judiciary.  Such a vision though is woefully divorced from the realities on the ground.  Brutal wars do not happen due to "misunderstandings" and "misapprehensions," but due to incompatible and frequently diametrically-opposing goals and objectives of the belligerents.  The ensuing war occasions thousands of fatalities, tens of thousands of wounded, hundreds of thousands of refugees, and millions of seething, livid people.  The proposition that such people will, within a few years, be able to identify and focus on commonalities, and give each other a group hug is ludicrous... - and that encompasses members of the judiciary who, ultimately, are members of the warring communities.  Moreover, the administrators do not have years on end to wait for a groundswell  toward amity and reconciliation: Territorial administrations are necessarily transitional and temporary.

The conclusion is hence insuperable: The precepts of democracy, liberalization and liberalism, tolerance, pluralism, rule of law, etc. must be foisted, with some measure of compulsion, on postconflict societies.  The approach does not have to be exclusive of continual efforts to coopt local stakeholders--indeed, doing so is indispensable to eventual success--but even medium-term results are impossible without a degree of coercion.

One argument frequently advanced against coercion is that local actors are better equipped to handle local problems.  They carry more gravitas with the local populace and are more cognizant of the local challenges, history, culture, values, etc.  That is very myopic and blinkered reasoning: It presupposes that the external administrators are complete neophytes.  The situation is rather the reverse, however.  The administrators have their own experience, whether they are Westerners who come from the history of centuries of conflict and bloodshed or whether they come from areas that experienced centuries of colonial turbulence and postcolonial strife.  In any case, the administrators are informed by first- and second-hand knowledge of events whose corollary has been the realization that representative democracy is the best form of government, that the rule of law, separation of church and state, separation of powers, etc. are the best form of governance, that freedom of conscience and speech and assembly are essential for a thriving society, that the free-market economy is the optimal catalyst for sustained prosperity, and so forth.  Such knowledge, experience, and expertise cannot be dismissed as inferior to the locals'; quite the contrary.

Furthermore, it is questionable to what extent local leaders possess genuine sway and respect.  After all, they are the very same ones who initiated, inflamed, and facilitated the destructive conflict in the first place.  Rather than defer to them and strive to mollify them through compromise, it might be more advantageous to circumvent them and appeal directly to the population.  That was the tactic utilized in e.g. Cambodia, Bosnia, and Afghanistan, and though it was (boringly predictably) criticized, it is difficult to envision an alternative course of action the respective administrators could have taken.

All this is a gamble.  Anything externally imposed runs the risk of encountering implacable opposition solely by virtue of being foreign.  Internal malcontents might possess the pull to constantly and effectively undermine even the most forcefully imposed initiatives.  Ultimately, contrary to the conventional wisdom, the population (or a belligerent community) might not, even latently, be favorably disposed toward prosperity and stability, but be interested in brute dominance.

An international territorial administrator does not have the luxury of investing decades into endeavoring to change the hearts and minds of the administrated population.  Moreover, such an approach elicits the difficult question of why several generations (at least two or three, possibly many more) of people should be subjected to continued repression, oppression, penury, and an overall lesser standard of life when it is possible to fast-forward the process of democratization and liberalization.  Tens of millions more Afghan women do not have to be subjected to a life of ultra-patriarchal tyranny and all manner of physical and psychological abuse merely because academics believe that equal rights should not be imposed and international politicians do not have the resolve needed to ensure that is accomplished as soon as possible.  The bulk of international polity is today more sensitized both to the value and transience of human life than ever before.  It is increasingly not anymore the question of the "less fortunate" (read: by sheer accident of birth) becoming empowered politically and economically, but their becoming empowered politically and economically right now (or, at least, as absolutely soon as possible).

"Institutionalization before liberalization" not only entails no guarantees that the "liberalization" part will ever be attained; it also requires considerable time for an outcome (either way) to emerge.  Reversing the principle necessitates determination, resources, and, frankly, "thick skin" (for one, there will be inevitable, though mendacious and selfserving, charges of neocolonialism leveled), but the millions of longsuffering and brutalized people to whose aid international administrators purportedly come deserve nothing less.

Thus, "liberalization before institutionalization," with the utmost resolve and uncompromising, long-term commitment should be the imperative in scenarios of comprehensive international territorial governance missions.

©2015 Michael L.S.

Zionism and an independent Palestine

I recently had an vigorous, and at times acrimonious, exchange on Twitter concerning the (il)legality of Israel's presence in and legal claims to the West Bank.  (Jerusalem, Golan, and the Gazan airspace and maritime waters were all excluded for convenience's sake.)  I found it bewildering and depressing how woefully unacquainted with international legal rules, theory, and history those who professed to speak with the utmost authority on the matter were.

This issue has been hashed and rehashed--with varying degrees of expertise--in diverse loci.  A very lucid and approachable summary of the salient arguments and counterarguments is provided dispassionately by e.g. Benvenisti.  I will, nevertheless, endeavor to distill these even further here.  In the interests of full disclosure, I clarify ab initio that I am a Zionist, an atheist Jew, and a globalist.  I also firmly subscribe to the notion that Israel should withdraw from the West Bank on legal, ethical, political, and self-preservation grounds.

Title
Israel derives title to any and all territory from its international recognition, not religion or historical ties.  Further, territory cannot be acquired by force; that is a longstanding and indisputable principle of international law.  That axiom is not vitiated in any way by virtue of the character of the force in question (e.g. the distinction between an aggressive war and one of self-defense.)  The only way borders can be altered are by means of cession, secession, and succession.  All three, obviously, necessitate a treaty or similar instrument.  The most recent such applicable instrument in the instant case is the 1949 Armistice Agreement, meaning that land gained and retained in subsequent conflicts is not legally Israel's.  Israel is fully cognizant of this fact, wherefore it never undertook to annex the West Bank, realizing that such a move would be repudiated internationally as wholly illicit.  Instead, it has been exercising territorial administration over the West Bank since 1967.

Legal status of the West Bank
Entering a territory without an enabling treaty constitutes belligerent occupation (occupatio bellica) under international law.  As such, the relevant laws are supposed to apply, which include principally the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949 and its Additional Protocols, and the customary international law.  (The latter has been to a large degree codified in the conventional instruments aforesaid.)  Israel has acceded to the First Hague Treaty, and is a party to all the four 1948 Conventions.  It has, notably, not signed the seminal Additional Protocols (except the rather pedestrian third one), being one of the very few states in the world to not have done so, the others not being the most shining examples of embodiment of modern liberal democratic values.

The above being the case, one would be forgiven for deducing that the laws of occupation pertain to the West Bank.  Yet, Israel demurs on the basis that:

• As regards Hague 1907 and Geneva 1949, these apply between/among "contracting parties."  Since no contracting party held valid title to the West Bank prior to the 1967 occupation (Jordan's occupation/annexation thereof was illegal) or holds one now (Jordan has renounced all claims to the territory), Israel asserts that the said instruments are inapplicable.
• Israel has also been a "persistent objector" to the idea that the West Bank is subject to occupatio bellica.  Accordingly, in Israel's view, even custom does not apply.
• The upshot is that Israel is supposedly not bound by the laws of occupation in its exercise of authority in the West Bank.

It ought to be noted that the overwhelming preponderance of legal scholars (including in Israel), the I.C.J., the United Nations and its agencies, governments, and international organizations vehemently disagree with the above contentions by Israel.  Moreover, the Israeli Supreme Court as well as many of its politicians--including some of the highest ranking ones--have made statements (admittedly oblique) to the effect that the West Bank does indeed constitute occupied territory.

The argument that the laws of occupation do not cover the West Bank, however, has enabled Israel to circumvent many of the laws' prescriptions and proscriptions, the most notable being the prohibition of transfer of own civilian population to the occupied lands (i.e. establishing and populating settlements).

Settlements
Apart from the fact that these are viewed as illegal by almost every authority of note the world over, Jewish settlements are often cited as the foremost obstacle to attaining a political settlement (no pun intended) between Israel and the Palestinians.  I submit that is a flawed view.  The settlements occupy barely 5% of the West Bank territory, and are almost entirely situated in the propinquity of the Green Line.  As numerous studies and concrete proposals have determined, it would be easy to incorporate them into Israeli borders and cede comparable Israeli territory in recompense as part of a comprehensive peace deal.  The issue of the settlements, therefore, is a deflective device (a "red herring," as it were) in the discourse concerning the feasibility of successfully negotiating a peace accord.

Nevertheless, successive Israeli governments' (particularly the present Netanyahu's administration's) ornery insistence on expanding the existing and establishing new settlements can be said to be indicative of their overall negative and obstructionist attitude toward the eponymous "peace process."  The fact that "the other side" has also repeatedly acted in ways apparently prejudicial to the "peace process" does not mitigate Israel's responsibility in this regard.

Critique
The antecedent necessarily raises a number of issues, as follows:--

• The laws of occupation, and especially the Geneva Conventions and Additional Protocols, were created in the aftermath of the horrors and traumas of the Second World War.  Their main aim and purpose is to safeguard innocent, destitute civilians who find themselves in the theater of war through no fault of their own.  The Conventions' character is purely humanitarian, humane, and human.  Israel's otiose protestation that these treaties do not apply to the Palestinians on a technicality, even if that was legally correct, reflects very poorly on a state that professes adherence to the principles, values, and ideals of modern liberal democracy.  A country that ostentatiously trumpets its liberalism and humanitarianism, claims to represent a beacon of humanity in a region beset by barbarism, and strives to be fully accepted into the family of nations should be nothing short of mortified that it rejects the application of one of the most basic instruments of human compassion to millions of people under its direct control.
• Whether the laws of occupation apply or not, Israel does not on any wise possess valid title to the territories gained in any event since the 1949 Armistice.  That being the case, the status of such territories has to be determined by a treaty or other legal maneuver (e.g. renouncing all claims to the lands, such as happened with Jordan in 1988 or with the 2004 disengagement from Gaza).  However, an important principle intervenes, and gives additional urgency to the matter: the right to self-determination.  This right is enshrined in the U.N. Charter and the I.C.C.P.R. (which Israel has signed and ratified); it is also widely accepted to form part of ius cogens.  A plebiscite to such an effect has been often advanced as a remedy "repairing" all preceding illegalities and questionable acts on the part of the occupant.
• There is, however, a competing principle in international law: the preservation of territorial integrity.  This precept has been gaining in prominence and consistently supplanting self-determination since the natural demise of the trusteeship framework on the United Nations.  Indeed, in all the territorial administration projects undertaken by an international organization, cases that could have been solved by partitioning the lands concerned along demographic lines were approached diametrically oppositely: The hostile groups were forced to remain together and--as G. H. Fox puts it--replace war with politics.  They had to construct democratic institutions and mechanisms that would ensure an equitable representation of them all, and, to use a demotic turn of phrase, "learn to live" with each other.  Naturally, this does not apply in the West Bank (it not being a part of Israel), but it is a formidable trend to consider nonetheless.

Conclusions

The foregoing entails certain inescapable conclusions.

• The status quo is untenable.  The Palestinians will not resign themselves to perpetual occupation.  They will not accept further untold generations living in limbo as, essentially, stateless persons, condemned to impaired lives due to politics.  Contrary to preposterous proposals among some sectors of Israel's body politic, they will not be bribed into abandoning their homes, and despite what can only be termed as wet dreams on the part of others, Israel will not be able to expel them wholesale without simultaneously signing its own death warrant.  The Palestinians are, hence, there to stay, millions of them, and not getting any happier.
• Furthermore, Israel has already seriously depleted its credit of good will among people the world over: From the underdog and victim of centuries of persecution and relentless, vicious assaults Israel is now a miscreant and even a villain to increasingly many.  A decade ago, when Israel's hotels, pizzerias, and nightclubs were being suicide bombed on a weekly basis, this elicited much sympathy; the resulting operations--far more intensive and destructive than the recent ones Gaza--met largely with understanding and mostly unqualified approval.  Today, though rockets indiscriminately rain down on its kindergartens, malls, hospitals, and homes, well-nigh any action in response by Israel brings hundreds of thousands of people out on the streets in protest.  Though the protesters' motivations are baldly hypocritical and deeply suspect, the accusation that they are anti-Semites is facile and ludicrous.  More than anything else, they are fed up with the conflict.  They will not be disappearing either but will only increase in quantity as well as in the quality of their action.
• The current realpolitik will also undergo changes.  It is certain that the United States--as Israel's main sponsor and, some would say, enabler--will gradually lose both its interest and its clout.  It is extremely doubtful that whoever replaces or complements the U.S. on the world stage will be as amicably disposed to Israel.  The E.U. states, too, have collectively and individually been losing patience with Israel and are taking steps to support a Palestinian state without deference to Israel.  The emerging economies have traditionally been cool toward Israel, and that is unlikely to change; quite the contrary might be the case.
• The corollary--unmistakable suggestions of which are already materializing--is that maintaining the present situation will eventuate in Israel's turning into a pariah state.  Oppressing millions of unwilling people can simply not be done with impunity anymore, period.
• Inasmuch as the current state of affairs needs to be changed, Israel would be well advised to take steps to do so expeditiously.  As noted supra, a separate Palestinian state might not be a viable option much longer, both due to prevailing legal and political trends and due to the extent of inextricability of Israel's involvement in the West Bank.
• The only medium- and long-term alternative to "two states for two peoples" is a single, binational state, in which the Palestinians of the West Bank would gain full Israeli citizenship.  One does not have to be conversant with any social science to appreciate that lumping together in close quarters two inimical groups each numbering in millions who diverge greatly in culture, language, religion, economy, education, lifestyle, values, and pretty much every demographic and psychographic category imaginable would be an unmitigated disaster for both, but particularly for the (current) Israelis.

The inevitable denouement is that advancing the two-state solution is in the interests of both parties.  Far from an independent Palestine being perceived as some sort of a defeat for Israel, it is to Israel's great benefit and is fully compatible with Zionism; indeed, Zionism in all its forms (except, perhaps, for its religious incarnation) nothing short of mandates it.

There is, though, the no small matter of Israel's security, and neither Gaza nor southern Lebanon sets a propitious precedent.  It is imperative that Israel's security be guaranteed and that an independent, sovereign Palestine not turn into a vast Hamas- or Hezbollah-infested terrorist camp.  That, however, will not be best ensured by continued occupation, but by inserting wise provisions in the peace accord and envisioning instruments to guarantee their observance.

© 2014 Michael L.S.

Plus ça change: Are human rights modern-day colonialism?

Reading through Anghie's (rather brief) exposition on some of the writings of Francisco de Vitoria--widely considered the pioneer of international law--one cannot but be struck by the parallels that can be drawn between his thinking more than five centuries ago and the doctrines informing some of the most recent of global developments.

When the Spanish encountered the "Indians" (Native Americans), they were unsure how to relate to them.  A common error is made in this regard by believing that the former viewed the latter ex ante as less than human.  That was not the case: De Vitoria and his contemporaries considered the natives fully human.  They also acknowledged that they were "civilized," in that they had discernible values, systems of governance and societal order, capacity to interact with others, etc.  The natives were, accordingly, fully human, equal in their humanity to the Spanish.  However, the Spanish recognized that the natives' values system was at prodigious variance with their own, and the question ineluctably arose of how to reconcile them (if possible) or whose system would take precedence (if not).

De Vitoria astutely sidestepped the prevalent dogma at the time that all authority was ultimately traceable to a "god," or, more plausibly, the "god's" earthly representative (the pope).  The reasoning was that the natives had never heard of Christianity and could hence not be held liable under its injunctions.  He thus fell back on the (Aquinian) notion of natural law, i.e. an objective, ubiquitous set of rules and values immanent in all human beings.  De Vitoria termed its contemporary incarnation as ius gentium.  Here was the rub: He posited that, whereas ius gentium was universal, the Spanish had, in a manner of speaking, "perfected" it.  By implication, the natives required assistance to self-realize the truism, benefits, and execution of ius gentium, and it was the Spaniards' duty to proffer that guidance and help.  Crucially, any opposition was deemed unreasonable: If the norms of ius gentium were the perfection of thought and practice for all humankind, then any opposition to it was a fortiori retrograde, reactionary, and progress-retarding, and, accordingly, had to be staunched... - by any means necessary.  On that view, by extirpating dissent to the process of inculcation of ius gentium among the natives, the Spanish were doing them a major favor (even if that "favor" ended up manifesting itself in the form of blatant theft and ruthless genocide).

The analogy with modern times is glaring.  What was ius gentium in the days of de Vitoria is the conceptualization of putatively "universal" human rights (liberal democratic governance, rule of law, separation of powers, equality of the sexes, various freedoms (thought speech, etc.), protection of minorities, and so forth) today.  These values--just as ius gentium of old--are a product of evolution of the Western thought, and have been institutionalized by means of international organizations (e.g. the U.N.), which, themselves, are a product of Western politics.

The U.N. has promulgated such values through the Universal Declaration of Human Rights, the International Covenants, and other instruments.  The Europeans states have embraced even higher normative standards in the form of the E.U.'s Charter of Fundamental Rights and the E.C.H.R.  The O.A.S. has its own charter as does the A.U.  A.S.E.A.N. and the Arab League also compiled declarations, though these have been rebuked for falling short of the "universal" values.

The question is what happens when a subject deviates from these "universal" norms.  That can be due to e.g. its cultural specificities or economic particularities.  The Arab Charter on Human Rights, for instance, fails to guarantee equal treatment of women and discriminates against non-citizens' basic rights.  A.S.E.A.N.'s attempt has met with even more strident criticism for omitting some of the most longstanding, fundamental protections or providing conspicuous and numerous loopholes to evade them.  These, however, are difficult to challenge directly, being that they are endorsed by a multiplicity of quite powerful states.  There is an entire official (government) and semi-official (N.G.O.s) "industry" centered around producing reports and conducting campaigns concerning individual states' adherence to the human right principles.  Which principles?  The "universal" ones, but of course.  And where the presumptive "international society" (read: the Western-led international organizations) can, it does its utmost to introduce as many of these norms as possible to the areas under its control (e.g. Timor-Leste, Kosovo, Iraq, etc.).  Harking back to de Vitoria, opposition to such endeavors is excoriated as backward, unhelpful, and, yes, hostile.  Though such hostility is no longer countered with genocide, its protagonists are excluded from all nation-building processes and, depending on the extent and quality of their opposition, may be subjected to anything from imprisonment to "daisy-cutters."

The issue at the heart of this discourse is what the A.S.E.A.N. Declaration unabashedly makes reference to: the notion of "cultural relativism."  It is an idea with which even a cursory observer of current affairs is familiar, to wit, that every society has a right (indeed, a human right!) to practice and safeguard the values prevailing in that society, even if these diverge considerably from the alleged "universal" values.  That idea is espoused by such diverse actors as autocratic regimes, leftist academics, Western leaders (still reeling under the burden of colonial baggage), and, indeed, a great many people in the type of societies in the docket, including those (e.g. women) who would benefit from a conferral of the "universal" rights on them.  Who, the trope goes, made those rights "universal" and with what justification?  What should give the (Western or West-tainted) powers the right to, yet again, impose their views on the sovereign peoples of the world?  Did we learn nothing from the brutalities of centuries of colonialist practice?

The opposing view is that of the "soft bigotry" of lowered expectations.  The contention here is that the "universal" values are indeed superior to--termed, for simplicity's sake--regional values, and that attempting to equalize the worthiness and merit of the two bespeaks racism, for it implies that the "regionals" are not deserving of enjoying the same liberties and rights as those fortunate enough to be living in, basically, the Western(-modeled) countries.  Far from striving to eschew the aggregate of the colonialist enterprise, "cultural relativism" does the opposite: It perpetuates the "natives'" inferiority.

The crux of the matter, therefore, is the status of the "universal" set of human rights norms in comparison to the others.  Is it--its misnomer notwithstanding--just one of many acceptable (which itself is a normative term) standards or is it the ideal toward whose truly universal implementation to aim?

Descrying a definitive answer to this is impossible.  The Western body politic is petrified of doing or saying anything remotely reminiscent of colonial practices (further affected by the anomie plaguing its society, in which any kind of judgment is unwelcome).  The assorted Third World tyrants are keen to maintain the status quo, which is greatly strengthened by illiberal practices passed off as "local culture."  Many ordinary people in those societies, too, vehemently oppose change.  (That is by no means unprecedented: Some of the most ornery opponents of the Suffragette movement in the West were precisely women.  For instance, tales abound of female prison wardens being far more brutal toward incarcerated women's rights activists than their male counterparts.  Scores of women, too, made public speeches and engaged in other types of campaign denouncing the Suffragettes.)  Who is entitled to deem one system of values better or worse than others, on what basis, and pursuant to what criteria?

Meanwhile, child marriages are rampant.  So is marital rape.  Cheap child labor supports entire economies.  Homosexuals are hanged, "apostates" beheaded, "adulterers" stoned, juveniles imprisoned with adults, "blasphemers" lynched, girls denied access to basic education.  The Gulf Cooperation Council states openly practice what can only be described as modern-day slavery.  Tens of thousands of people are locked up without any due process, including for political slights and "thoughtcrime."  Tens of millions have no recourse to justice against gross excesses by state power.  Hundreds of millions are unable to have any input on who determines the course of their lives.  Do those individuals not deserve the quality of life that those born in other places in the world are fortunate enough to be able to take for granted?  Should those so blessed not assay to help the them?

If the latter narrative is embraced, there will inevitably arise resistance, including from among the "natives."  How should it be addressed: the way of the Spanish or differently?  Is a universalization of human rights necessarily a zero-sum endeavor, viz, either the current state of affairs is accepted or the errant societies are brought into line, even manu militari if need be?

Might the answer lie in gradual, nuanced--yet insistently, doggedly, confidently, continually driven--change employing methods such as Joseph Nye's "soft power"?  That could take generations, meanwhile condemning billions to continued suffering and inferior life quality.  Conversely, rapid, revolutionary tactics could backfire (q.v. Afghanistan, Iraq, Libya, and other, less pronounced, cases in Africa), occasioning conflict whose immediate ramifications would be far more detrimental than the invidious conditions at present.

One conclusion does seem inevitable: The "universal" norms of human rights are superior and should be adopted and practiced globally.  How that is actualized is a different matter, but de Vitoria's strategy is not an option.
 
© 2014 Michael L.S.

Condition: Academic detachment from reality. Prescription: a dose of reality

Last month I attended a Ph.D. "master class" in which eight or so doctoral candidates presented their work-in-progress, preliminary findings, context of their research, etc.  One presentation in particular caught my attention.

A young lady is examining compliance with international humanitarian law (the Geneva Conventions et alia).  Her hypothesis is that the laws in question are often(?) not followed on the battlefield because military personnel receive inadequate training in this regard; in particular, the imperative of adherence to these provisions is not impressed upon them with sufficient urgency and sobriety.  If only--she contends--soldiers were instructed more formidably in how critical it is to comply with the norms of international humanitarian law, the likelihood of instances of abuse such as the Abu 3'rayb prisoner mistreatment scandal or the more recent contretemps involving Sgt. Alexander Blackman would have been minimized if not altogether averted.

As I was absorbing her polemic, it struck me again how alarmingly insular and detached from the real world academia is becoming.  College students and academics have been castigated for being "out of touch" on many issues.  An apposite example is the now decades-in-the-making promotion of a happy-go-lucky mode of education for children that accentuates their right to personhood, individuality, having fun, and so forth, which critics claim (now supported by hard research) deprives them of the structure, discipline, knowledge, and skills that they require to grow into both competent workers and functional adults.  Prison reform, human rights, civil liberties, sexual equality, and immigration are some other matters that lend themselves to such criticism, too.

The biggest difficulty with the issue in the docket is that it is being theorized on by someone who has no first- or even second-hand experience of the battlefield.  It is not only unrealistic, but also egregious and insulting, for an adolescent ensconced in an armchair in Manchester to be prescribing to grown men and women situated in the midst of war how they ought to behave.

Imagine, if you will, the reality of the theater of war: Mines and R.P.G.s are exploding left and right, dozens of bullets are making the cracking sound inches away from your ears, you have witnessed people who an hour ago were laughing and planning Christmas with their families blown to smithereens a few feet in front of you, your friends' guts are spilling out of their bodies or their limbs are gone...

There is no Undo button to press anywhere.

There is no Pause button.

There is no Quit button.

Somehow you make it out alive and later on you come across a wounded enemy combatant who mere minutes previously had been launching grenades at you and spraying you with bullets.  Can anyone seriously argue that in such a situation you can be reasonably expected to engage in an objective, dispassionate, detached introspection of the Geneva Conventions!?!  "Ludicrous" does not begin to describe it!

I am not even remotely impugning the importance of both the existence and enforcement of robust international rules governing engagement in armed conflicts.  Wanton destruction, revenge, brutalization of civilians or even coldblooded abuse of enemy combatants are to be unreservedly condemned, outlawed, and censured.  However, there has to be a dose of hard realism present when presuming to prescribe the behavior of individuals placed under unimaginable levels of personal, existential stress.  P.T.S.D. is a recognized condition, which affects the sufferers profoundly; this has to be accounted for in any discourse seeking to regulate the conduct of those likely to be severely afflicted by it.

After all, many of those insisting that soldiers should abide by the international humanitarian law even in the most stressful circumstances are among the first to characterize many types of criminals and societal transgressors as "victims" who should first and foremost be helped address their multifarious problems, and be punished only as an afterthought and certainly with leniency.  Can they not extend the same kind of consideration to those who underwent experiences the "disenfranchised" and "marginalized" rioters of 2011 or violent robbers afflicted by assorted "substance addictions" cannot even fathom?

© 2014 Michael L.S.

John Dugard's Melland Schill Lecture at the Manchester International Law Center (M.I.L.C.)

October 15 John Dugard delivered a lecture at the University of Manchester. It was organized by the University's International Law Center as part of its resuscitated Melland Schill series. The lecture's topic was statehood. In particular, Dugard identified the principal obstacles faced by aspiring states in achieving recognition, furnished the basic history behind some of those obstacles, and proffered a possible solution.  The main themes were the principle of territorial integrity, the prohibition of secession, and uti possidetis.

I enjoyed the content a lot.  The brief historical précis concerning the decolonization of Latin America and the emergence of nation states on that continent was particularly intriguing being that it is history very seldom taught or (curiously) of only scant interest to those of us outside the region.  The leitmotif pervading the talk was that political considerations almost invariably seem to subordinate international law--such as there is--in the context of state recognition.  That was certainly a shrewd (and frustrating) observation.

However, I could not help but feel most uneasy about several facets of Dugard's talk.

• Dugard lamented how the Badinter Arbitration Commission--formed in the early 1990s to essentially demarcate the borders of the erstwhile constituent republics of Yugoslavia--decided to ignore the demographics of the region in the course of its proceedings.  In particular, he reproached it for overlooking the existence and relevance of the autonomous regions of Kosovo, Republic of Srpska, and Krajina.
• The above betrays an ignorance (or, at least, ignoring) on Dugard's part of some basic historical facts.
1. The Badinter Committee was in operation between 1991 and 1993.
2. Kosovo is the only one of the three entities that has any historical precedent or merit.  It was a constitutionally-recognized autonomous region within the former Yugoslavia.  The other two never held any such or similar status.
3. Krajina was proclaimed in 1991, around the time the Committee began its work.  Its existence owed to the success of local Serb militias (with semi-official support of the regular Yugoslav military forces) in seizing control of sections of the territory formally part of Croatia qua a federal Yugoslav republic.  No entity such as Krajina--de iure or de facto--had ever existed on the lands claimed by the instant entity.
4. The Republic of Srpska was formally and legally established in 1995 (i.e. well after the Committee had wound down its operations) pursuant to the Dayton Accords, although it had existed in some form and within constantly shifting borders since 1992 on the same foundations as the aforementioned Krajina.
• The question arises: On what basis does Dugard ascribe legal or even political equivalence to Kosovo on the one hand, and Srpska and Krajina on the other?
• Is Dugard seriously arguing that an ability to conquer and continued control of a territory is or ought to be recognizable under international law; yea, that it should be rewarded with arguably the highest conceivable privilege in international law and relations: recognition of statehood?
• Does he seek to roll back one of the preeminent pillars of international law and relations, that took literally centuries to crystallize and solidify: the prohibition on the use of force?  Is he advocating we revert to the brute ius victoriae?
• Lastly, is he not at the very least precipitate in chastising the Badinter Committee for ignoring "facts on the ground" when those facts entailed fluid and ambiguous developments contemporaneous with and even postdating the Committee's work?
• He--reasonably, in my view--denounced the possibility of carving up Africa along tribal lines, because doing so would have entailed the genesis of hundreds, if not thousands, of states.  That would be impractical, unwieldy, and most probably beyond political pale.
• By arguing against using demographics in generating states in Africa, Dugard betrays breathtaking hypocrisy.  Why should the national aspirations of Serbs in Croatia and Bosnia-Herzegovina have been acknowledged and accommodated by the Badinter Committee, but not those of countless African tribes?
• Are Africans' wishes qualitatively inferior to the European Serbs'?  Is Africans' sense of identity, cohesion, and belonging somehow less worthy of recognition than the Serbs'?
• Ultimately, the many African tribes' national desires could have been acceded to far more easily and with better justification (at least historically speaking, and possibly even legally) when setting up brand new states a few decades ago than could maiming Croatia or Bosnia, both of which have a long and august history as states.
• Where is the consistency: Are or are not demographics (which are usually synonymous with ethnicity or nationality) to constitute a major, the main, or even the sole determinant in demarcation of states' borders and/or in state recognition?
• He advanced a solution whereby an international tribunal would be established, which would examine each petition for statehood in its own right, and produce a nonbinding declaration of the merits of each such case, presumably for the consideration of the Security Council and other international actors.
• This notion was verbalized by Dugard literally a half hour after he had narrated the story of Kosovo and the relevant advisory opinion of the International Court of Justice on the matter.  In the event, he pointed out that the I.C.J. had issued an opinion of the case, which it described as sui generis, and which the Security Council promptly decided to ignore.
• The problem here is obvious.  Dugard wants a tribunal; the I.C.J. is a tribunal (indeed, most would consider it the foremost, most authoritative and illustrious tribunal in the world).  Dugard wants it to examine each case of prospective statehood on its own merits; that is precisely what the I.C.J. did with Kosovo.  Dugard wants the new tribunal to issue nonbinding opinions; check: It is what the I.C.J. did in Kosovo, too.
• Apart, therefore, from the fact that we already have a tribunal that does exactly what Dugard proposes, the solution he advances does not address the core challenge: Whether it be the I.C.J. or Dugard's fabled new institution, what is to ensure that the Security Council does not ride a carriage and horses through its opinions just as transpired in the case of Kosovo?
• Furthermore, the antecedent problem aside, does the world seriously need yet another expensive talking shop?  Would Dugard like to justify its establishment to the taxpayers who would foot the bill?
• He made repeated references to Palestinians and "Palestine" as well as the role of the United States in world affairs, which he casts in--to put it mildly--an unflattering light.  Those remarks were in each instance laden with political connotations and messages.
• Dugard's rabid anti-Israeli paroxysms are well documented and need no revisiting*.  Regardless of whether or to what extent he is justified in this regard, it is nothing short of outrageous that while mentioning "Palestine" at least a half dozen times, he did not throw even an innuendo the way of, say, the Taiwanese or the Tibetans.  The Kurds got a single, rather perfunctory, mention.  For someone who likes to fly the banner of equality and justice, Dugard propagates a world wherein some peoples are conspicuously more equal and important than others.
• Leaving aside thus what can only be deemed hypocrisy and favoritism, by making continual loaded political comments, Dugard undermines his own argument.  If the problem of state recognition (the inequity, iniquity, inequality, inconsistency, illegality, etc.) owes to geostrategic and political deliberations of the powers that be, then what is the value of injecting his own political dogma into the argument?  If there is too much politics and not enough law in the field of state recognition as it is, then should Dugard not be aiming to redress the imbalance instead of perpetuating it himself?

The foregoing certainly served to "put a damper" on the entire experience.  One expects an international theorist and practitioner of Dugard's stature to demonstrate a higher degree of professionalism--particularly as far as academic neutrality and probity--than showcased in casu.

Nevertheless, he adverted to a thought-provoking and paradoxical issue, to wit: Being a state is the basic prerequisite for an ability to participate in the formation of international legal instruments and mechanisms.  Yet, becoming a state is not at all determined by that selfsame international law, but by narrow, unpredictable, and often petty politics.

Law concerning state recognition exists, most notably the Montevideo Convention's four unambiguous, fairly easily ascertainable criteria.  Yet, due to politics, entities that satisfy those criteria (including the Palestinians) have not been elevated to the hallowed club of the "international community" nor do they have much prospect of being admitted in the foreseeable future or beyond, whereas some who do not fulfill one or even more of the conditions have.

Should we just reconcile ourselves to the reality of Realpolitik and accept that law will always take a backseat in this regard, or is there a scenario whereby states can be persuaded to follow the objective letter of the law?  That, of course, is not merely the dilemma informing the matter of statehood and recognition, but many other aspects of international law.  Indeed, one could persuasively argue that there is no such thing as international law per se, but merely states' obligations in an international context, which states adhere to or not according to political dynamic.

* To illustrate: A day later, while commenting on a doctoral candidate's presentation on general ius in bello, out of literally thousands of blood-curdling examples of its violations, Dugard invoked the one single modern-day documented case of an Israeli Army's rabbi (and a retired one, at that) who called for an indiscriminate killing of Palestinians.  Whatever his reasons, Dugard clearly has an extremely sharp ax to grind with Israel.

© 2014 Michael L.S.