Doctrines Derailed?: Internationalism's Uncertain Future

I’m delighted to welcome you to Crisis Group’s 5th annual briefing.

My name is Louise Arbour and I’m the President and CEO of International Crisis Group.

Many of you know our work well, some are relative newcomers. In the course of today and tomorrow you’ll have an opportunity to interact with Crisis Group’s staff and board, and you will get, I’m sure, an excellent insight into who we are.

Rather than describe to you here our mission and methodology, I want to steal this opportunity to share with you some personal thoughts developed over my four years in this position, as well as during my previous work in different, related capacities.

It is well known that our work is geographically based, rather than thematic. And you will get, in the course of this Global Briefing, a very good exposure to the breadth of our geographic work, and to a wide spread of detailed views and opinions on the evolution of the conflicts in the regions and countries that we cover.

What we do less often, though, is remove ourselves from this intensely contextual approach to reflect on the state of ideas and institutions that play a more global role in the management of conflict and the advancement of peace and security. Many of these feature regularly in our work, but not always explicitly and usually through the lens of a single conflict or crisis.

Allow me therefore to look at what events over recent years tell us about some of these doctrines and institutions.

I want to look briefly at four issues: (i) the pursuit of international criminal justice; (ii) the Responsibility to Protect, or R2P; (iii) peacekeeping, or perhaps now better put peace-enforcement, missions; and (iv) the international promotion of the Rule of Law.

All these were embraced, albeit some with more enthusiasm than others, in this still relatively new post-Cold War era as desirable investments in the promotion of international peace and security.

When, by tomorrow evening, you have finished surveying with us the state of what I’m sure will appear a rather un-peaceful world, you may ask yourselves what some of these post-Cold War doctrines and institutions have actually contributed.

If the answer is “not enough”, then it might be useful to pause and examine what, thus far, has gone wrong.

Working as we are on some of the most difficult, volatile and war-torn parts of the world, this two-day briefing risks leaving a rather bleak impression and possibly even a sense of doom.  I certainly don’t want to add to that. Not all is negative, of course – the peace process in Colombia, the top-down reforms in Myanmar, potentially positive change in Iran, the first handover from one democratically-elected government to another in Pakistan – not all news is bad.

So as I begin to highlight the shortcomings of existing frameworks for conflict prevention, I want to stress that some of it is working, and that all is fixable. But not if we refuse to take a critical look at the ideas and institutions we have championed for fear of seeing modest gains unravel.

Let me turn first to international criminal justice, now anchored in a full decade of work by the International Criminal Court. We all repeat the mantra that there can be no lasting peace without justice; and that’s true enough. But I don’t think that we have yet resolved the inevitable tensions between the two in a workable fashion.  

Security Council referrals to the ICC are, I believe, particularly problematic. Two referrals by the Security Council to the ICC, in the cases of Darfur and Libya, have done little to enhance the standing and credibility of the ICC, let alone contribute to peace and reconciliation in their respective regions. Last week the judges of the ICC, at the request of the government of Libya, ruled one of the two Libyan cases inadmissible, clearing the way for President Qadhafi’s spy chief Abdullah al-Senussi, to be tried in Libya where investigations are already underway.

There have been talks about the Security Council referring Syria to the ICC, amidst a general sense that, first, it will not happen anytime soon and, second, even if it did it would do little to advance a mediated end to the war, which currently appears the only remotely feasible way of ending the fighting. The Security Council’s actions in response to allegations of human rights violations in Sudan and Libya is also in stark contrast to its silence in the face of equally credible allegations of gross violations of human rights and international humanitarian law by government forces in Sri Lanka, where the last few months of the war in 2009 saw tens of thousands of civilians killed in indiscriminate attacks.

It’s true that Security Council referrals expand the reach of accountability to countries that have chosen not to be parties to the Rome Statute that established the ICC. But they do so at a cost that any justice system should find difficult to bear: three permanent members of the Council are not party to the Statute and all five can use their veto power to shelter themselves and their friends from this expansion of responsibility. Indeed, Security Council Resolution 1970 referring Libya to the ICC specifically excluded nationals of states not party to the Rome Statute from the ICC’s jurisdiction – Americans for example – except, of course, Libyan nationals.  So much for the Rule of Law, premised as it is on equality before the law.

Security Council referrals therefore expose the Court to charges of politicisation, while providing the Court with no compensatory benefits such as additional financial, political or operational support. And in the end, Council referrals may in fact underscore the Court's impotence rather than enhance its alleged deterrent effect, given that in Darfur Security Council backing has achieved so little, while in Libya there is a sense in some quarters that the Court withdrew from a contentious arena leaving the indictees to be tried in a judicial system under severe stress.

Another serious challenge to the Court is emerging from the election of Uhuru Kenyatta and William Ruto, as President and Vice-President of Kenya, after having been indicted by the ICC, and their subsequent efforts to drum up opposition to the Court in Africa. The two are casting their election as evidence of national reconciliation that their trial could compromise. This conveniently obscures the failings of the Kenyan system that permitted indicted criminals to stand for public office. But it highlights the reality of post-conflict environments where justice can be brandished as a further threat to peace.

And finally we will discuss in more detail this afternoon the tensions between the objectives of peace and of justice in the negotiations currently taking place in Havana between the Colombian government and the FARC.

So recent events – whether the Security Council referrals, the difficulties the Court faces in Africa, or its balancing act in Colombia – appear to challenge the assumption underlying the international justice enterprise: that holding military and political leaders accountable for war crimes would contribute to peace, by deterring such conduct in the future and encouraging national reconciliation.

This is not to say that we should abandon the fight against impunity. And there’s no question that we must support the Court’s work. But it means that we need to be more strategic about the convergence of justice with the resolution of armed conflicts.

In my view this cannot be done by either peace or justice trumping the other – as in effect it would through sequencing one before the other – but rather by seeking in every case an outcome that maximises both. This in turn requires compromise – both sides have to give. Many justice advocates, however, wary of losing ground, are unwilling to support that approach.  An alternative – creating a model whereby the political and justice tracks are parallel rather than criss-crossing – remains out of reach, although it has, in my view, considerable merit.

Let me now turn to the Responsibility to Protect, or R2P, as, first, a doctrine reflecting a modern articulation of state sovereignty as entailing not just states’ rights but also their responsibility to look after the welfare of their citizens and, second, a framework for intervention in the domestic affairs of a state, including through military action, in order to prevent mass atrocities.

Despite early attempts to focus on prevention by all means short of the use of force, in reality the debate over R2P has focused mostly on its sharp end: how to mobilise international support for using military force against a government unwilling or unable to protect its own people.

Combined with some dysfunction in the Security Council – to put it mildly – the doctrine has become hostage to politics, and to public opinion.

It was designed to mitigate the harm to civilians caught in war. But in Libya it was instrumentalised also to effect a change of regime. Whether this showed its potency or will lead to its demise is unclear. Since then the doctrine has proved useless in mobilising the international community to protect civilians in Syria, where well over 100,000 people have been killed so far. In fact it may even be part of the problem: some Security Council members have been reluctant to pass any resolution on Syria claiming to fear it could then be stretched to justify military action.

Still, the idea of using external force to prevent atrocities continues to have currency. It is in fact a requirement of international law under the widely ratified genocide convention; it recently led French foreign minister Laurent Fabius to call on Security Council veto holders to undertake voluntarily not to use their veto to prevent actions designed to stop mass crimes (with the not insignificant caveat that they should feel no such restraint where their national interests are at stake).

R2P was articulated as a humanitarian doctrine, not as a conflict resolution one. Whether it can ever be purely the former remains to be seen: once Qadhafi was declared a murderous threat to Libyans, how could the NATO intervention have ended in any way other than regime change? The failure to recognise this fact opens the doctrine up, inevitably, to a politicisation that will render its utility, I suggest, questionable in the short to medium term.

Third, let me say a few words about Peacekeeping. More blue helmets are deployed today than maybe at any other time in UN history. UN peacekeepers have, undoubtedly, played crucial roles in moving societies from war to peace.

Over recent years, however, their responsibilities have changed almost beyond recognition – with perhaps the most dramatic shift being from peacekeeping to peace “enforcement”. The newly deployed intervention brigades in the DRC, the ambiguous environment in which the UN is deploying in Mali, and the latest calls by the UN Secretary General for more, and more robust, troops to take on Al-Shabaab in Somalia, may herald a new era at the UN of peacemaking by warfare.

This is particularly troublesome as the UN-deployed missions are often required to side with governments of questionable legitimacy; and the weaker these governments are or become, the more the strong arm of the UN will be called upon to prop them up.  In this emerging configuration, the structural drivers of conflict – such as poverty, marginalisation, rising extremism, resource disputes and so on – risk being further neglected.

In addition, the call, as expressed by Lakhdar Brahimi years ago, that UN missions have the means commensurate to their mandates has never been fully implemented. Mandates express ambitious protection of civilian agendas, while troop contributing countries are wary of putting their forces in harm’s way to do just that.

Given also the military vigilantism of drone strikes and special forces operation that the second decade of the war on terror has sought to legitimise, there are reasons to be concerned about the increasing appeal to the use of force in the pursuit of peace, and its search for legitimacy, including in weary public opinion.

On the Rule of Law, Crisis Group has written extensively on the importance of building rule of law institutions in fragile or conflict-affected states.

The link between the rule of law and armed conflict – particularly internal armed conflicts, the most common form today -- could not be better expressed than it was in the preamble of the Universal Declaration of Human Rights in 1948:

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.

Rule of law institutions are important and the development agenda has long neglected them even under the heading of governance. In most conflict-prone areas we spend, for example, more money and political capital on elections and support for the executive than on the establishment of a competent, professional and independent judiciary. This is true from Afghanistan, the DRC and Somalia to Guatemala, Sri Lanka and the Central Asian republics: weak or corroded judicial systems are both a product of crisis and a sign of crises to come.  

There is also a tendency to conflate the concept of rule of law with the security sector. We do invest in developing the capacity of police and militaries, but we should guard against pretending that this is what the rule of law is mostly about.

Law enforcement is not a bad thing in and of itself and tends to be popular even with, indeed particularly with, authoritarian regimes, as long as there are no constraints imposed on them about the content of these laws.

But understood properly and substantively, the rule of law expresses the requirement of equal benefit and equal protection of the law embodied in Lacordaire’s famous insight that “between the rich and the poor, between master and servant, between the strong and the weak, it is freedom that oppresses and the law that sets free”.

It is difficult to get any traction on recommendations that call for such a substantive and long-term investment in conflict prevention, mitigation and resolution. But short of pressing for such fundamental policy engagement in countries at risk, our work will mimic that of Sisyphus pushing that rock up the mountain.

Again I don’t want to leave you with this image of the futility of our efforts. Quite the opposite; it is only by acknowledging the inadequacies of our approaches that we have any chance of improving them. As the US prepares to pull out of Afghanistan, there will be a lot of so-called lessons learned about a wasteful decade. Throughout that decade, we have published extensively on the need to invest in the long-term effort to build rule of law institutions in Afghanistan. As others are calling for a repudiation of short-termism in addressing the defining issues of our time such as climate change and economic inequalities, so it is in the field of conflict prevention.

So I will leave you with this invitation. Keep in mind, over the next two days, that events each year expose new weaknesses and contradictions in the doctrines and institutions – the tools – of conflict management. To identify these is not to dismiss those tools altogether – they have, for the most part and despite their shortcomings, been sources for positive change.

Rather to do so should encourage further thinking on how to fine-tune them and use them more wisely to advance peace and security.

Many thanks.