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When the Line Between War and Peace Becomes Blurred, How Do We Keep Ourselves Safe?
When the Line Between War and Peace Becomes Blurred, How Do We Keep Ourselves Safe?
USG Statement on Int’l Criminal Court Probe into Alleged U.S. War Crimes Is Missing Some Things
USG Statement on Int’l Criminal Court Probe into Alleged U.S. War Crimes Is Missing Some Things
Op-Ed / Global

When the Line Between War and Peace Becomes Blurred, How Do We Keep Ourselves Safe?

Originally published in World Economic Forum

Is a more connected world a safer and more resilient one, or is it more brittle and fragile? It all depends on how we organize our defense. But the failure to stem the rise of terrorism over the past 15 years suggests we’ve not got it right. How can we restructure our defense systems to take into account the immense changes taking place, and the blurring distinction between war and peace?

An Out-of-Date Model

Today’s defense model is one of state-centric centralized defense. Each state is expected to protect its citizens against external threats by deterring state-to-state aggression and by intervening in those states whose failure provides a safe haven to non-state enemies.

States are also expected to protect people against internal threats; they do so through increased police and military presence in our cities, and through ever-expanding digital mass surveillance to detect anomalous behaviours and identify potential threats.

A Thin Line Between War and Peace

This model is not working. Whether it is little green men in Crimea or cyber-attacks, the line between war and peace has been blurred, and in a world no more structured by an ideological divide, exploiting the vulnerabilities of the enemy is a more effective way to wage war than confronting it head on.

As for failing states, 15 years of costly interventions should have taught us the limits of military intervention: foreigners may help but they can’t substitute for locally driven state building.

We need an alternative model of decentralized defense that will reflect the profound transformation brought upon us by the digital age...

Lastly, finding the needle of terrorism in the haystack of law-abiding citizens is proving to be a frustrating pursuit, which at worst could turn democratic countries into police states, and at best, generates many false flags and will never guarantee complete success, even if the record of security agencies is better than often alleged.

We need an alternative model of decentralized defense that will reflect the profound transformation brought upon us by the digital age and the increased connectivity.

A New Approach to Defense

What we have at present is the worst of both worlds: traditional centralized systems are inefficient at identifying and correcting local vulnerabilities, but connectivity increases vulnerabilities because it accelerates and multiplies the psychological, political and in some cases physical impact of an attack on any part of a system. This is very different from the terrorist attacks of the seventies, which were not a threat to our societies.

What, then, should our new approach towards defense look like? That’s not an easy question to answer, but whatever model we end up with needs to take into account five important points:

The enemy within

Internal fragilities are a greater risk than external threats. By any objective measure, terrorism and external aggression are low risks to our personal safety, but they exacerbate our pre-existing sense of vulnerability. The biggest risks are the political upheavals that such a sense of vulnerability can trigger and that malevolent actors can exploit.

We can’t let fear win

Communities brought together only by fear are vulnerable because fear destroys trust, which is the foundation of any long-term human community. A much greater effort is needed to foster a positive sense of common purpose. Civic organizations and public debate have a critical role to play in strengthening the fabric of society from the bottom up.

Cities will supplant states

Physical proximity is becoming more relevant as a counterweight to the anonymity of globalization: in an urbanized world, cities are likely to become increasingly important as political units and standard bearers of identity. Over time, they may become more relevant to our security than states, provided that mechanisms are put in place to ensure effective sharing of data.

The only way to restore some symmetry and stability is to organize defense at the lowest possible level...

The changing nature of warfare

Top-down provision of security, based on the Weberian model of the state enjoying a monopoly on the legal use of force, is ill-suited to the growing diffusion of power, including lethal power, which multiplies the capacities of individuals to wreak havoc in a society. Attack is becoming much cheaper than defense, especially, but not only, in the cyber world. We should not be surprised if this makes asymmetric warfare the most rational way of conducting war, which would generate increased instability.

The power of devolution

The only way to restore some symmetry and stability is to organize defense at the lowest possible level, empowering individuals to protect themselves against cyber-attacks through point-to-point encryption, and empowering cities to strengthen local connections among its citizens, making it more difficult for outsiders to launch attacks. Devolving power to individuals and to lower levels of government will also deprive enemies of targets whose value resides in their symbolic value as centres of great power, reducing the advantage of asymmetric attack. Nuclear warfare, but also cyber warfare, will be less likely if there is no target of strategic importance.

A Brave New World

The implications of this transformation will inevitably be gradual but they will be far-reaching.

Nuclear weapons for instance, are the ultimate expression of the traditional centralized state system: they need its resources to be developed, they require extreme concentration of decision for the threat of use to be credible, and they require similarly structured enemies for the threat to have a target. Their elimination – essential for the long-term survival of humanity – is unlikely to come from a decision to abolish them, but it may eventually happen through an evolution of political structures that will make them irrelevant, for lack of resources, centralized decision makers, and targets.

At the strategic level, the evolution of the world towards ever-bigger building blocks – the US, China, Europe, Russia – ­will be reversed. The ongoing backlash against a European super-state is partly an expression of nostalgic nationalism, partly an acknowledgement that big structures can be dangerous because the stakes are just too high when a change occurs at the top. But now the era of the big state is coming to an end.

At the same time, the world has benefited enormously from the economies of scale of globalization and from the dynamism brought about by diversity. Individuals, cities must be connected, but the connections are unlikely to replicate the pyramidal model of traditional federalism. The European Union will need to adapt to that new situation if it wants to stay ahead of its time.

More likely, in a flatter world, interoperability and communications between smaller entities will be achieved through a multiplicity of issue-specific arrangements that will balance democratic and technical legitimacy: think of the evolving governance of the internet.

The ongoing backlash against a European super-state is partly an expression of nostalgic nationalism, partly an acknowledgement that big structures can be dangerous...

At the operational level, just as “know your customers” has become an obligation for any law-abiding bank, know-thy-neighbour is likely to become a feature of tomorrow’s societies. If applied to big entities such as mega-states, or even mega-cities, it could destroy anonymity, which has been an essential dimension of freedom, and could make our societies oppressively Orwellian.

However, if there is a multiplicity of political entities, allowing us to choose our neighbours, and if we can protect privacy through robust encryption, that risk will be largely eliminated. Freedom will be ensured less through separation of powers and more through a juxtaposition of multiple powers.

Why Decentralization Makes Sense

The present experience with increased flows of refugees pouring into Europe provides the best example of the value of decentralization. When human beings are just part of a statistic, they can easily be perceived as a threat. When they acquire a human face, natural human empathy reasserts itself, as has been the case in many German small towns welcoming refugees.

Decentralized defense will operationalize that intuition: the abstraction of the nation feeds dangerous nationalism; the empowerment of individuals connected by proximity strengthens the fabric of a resilient and open society.

Op-Ed / Global

USG Statement on Int’l Criminal Court Probe into Alleged U.S. War Crimes Is Missing Some Things

Originally published in Just Security

As states gathered earlier this month to kick off the 16th Session of the Assembly of States Parties to the International Criminal Court, ICC watchers wondered what to expect from the United States at this difficult moment in its relationship with the court.

Indeed, it was hardly a foregone conclusion that the United States would show up at all.  Not an ICC state party, the United States had during the Obama Administration developed the practice of attending Assembly meetings as an observer, but that was during a distinctly warmer period in U.S.-ICC relations. The chillier turn of late is attributable not just to a transition to an Administration with considerably less ICC-friendly instincts than its predecessor, but to the ICC Prosecutor’s recent announcement that she would seek permission to investigate allegations of CIA and DOD detainee abuse as part of her broader work on Afghanistan.

Of course, even an ill-disposed United States would have good reason to send a delegation to New York to gather scuttlebutt and work behind the scenes to advance its interests, but that reasoning has not always carried the day.  Earlier this month, immigration hawks in the Administration prevailed over Nikki Haley to push the United States out of negotiations over a U.N. migration compact, self-defeatingly leaving other governments to negotiate it without U.S. input.  Against that backdrop, it was at least modestly encouraging to see that the logic of engagement carried the day, although it was only engagement in the narrowest sense, as the U.S. government seemed almost exclusively focused on delivering a message that pushed back against the Prosecutor for her focus on U.S. personnel.  That message was delivered in the form of a brief and sometimes Delphic formal statement that reflected some continuity with the past, some change, and a few conspicuous absences.

For continuity, look first to the two opening sentences of the statement, in which the United States expresses its strong support for justice and accountability and its appreciation for the ICC’s efforts to pursue these objectives. While these sentiments would have been unremarkable in an Obama-era statement, it is interesting that the United States would express any appreciation at all for the court in today’s political environment—one in which ICC arch-critic John Bolton publicly advised the Administration that any communication with the Prosecutor should consist of the message “You are dead to us.”  That a flicker of collegiality remains says something about the extent to which U.S. foreign policy has adapted to the existence of the court and even—until recently—embraced it as a partner. That said, these sentences, which are echoed at the end of the statement, are about it for positive messaging.

The statement then turns to attacking the legitimacy of the Prosecutor’s attention to U.S. personnel.  Notably, while there has been speculation that the United States might soon put forward an argument that the ICC cannot as a matter of international law assert jurisdiction over the nationals of non-party states (an issue that has been the source of protracted disagreement between State and Defense department lawyers) the statement does not quite offer one.  Instead, it dangles references to a range of legal principles that might be read as either irrelevant to the core question or the building blocks to a still unfinished overarching theory, depending on one’s perspective.

As states gathered earlier this month to kick off the 16th Session of the Assembly of States Parties to the International Criminal Court, ICC watchers wondered what to expect from the United States at this difficult moment in its relationship with the court.

The U.S. argument proceeds in four main parts.  The first is a simple rejection of the court’s jurisdiction over the nationals of any non-party state absent the state’s consent or a U.N. Security Council referral.  Framed in general terms, this statement of a “continuing position” maintains a seemingly purposeful ambiguity about whether it sounds in law or policy or both.  This has been the United States’ unwavering historical posture with respect to the ICC, and the formulation offered here is little different from what the Obama Administration might have said if pressed on the subject.

Next, the statement invokes the international law principle that treaties can bind only their parties and follows it with a statement that the Rome Statute cannot be interpreted as “disposing” of U.S. rights without U.S. consent.  It is unclear whether the U.S. means to offer the beginnings of a serious legal argument here, or more to give that appearance while it continues to work internally to consider whether one is actually available.  The latter seems more likely. For however true it may be that treaties do not bind non-parties or dispose of their rights, that is not what is at issue.   After all, the United States does not, in general, have the “right” for its citizens to commit alleged crimes on the territory of another state without facing justice at the hands of that state.  The primary right in question is Afghanistan’s – i.e., its right to bring those who committed alleged crimes on its territory to justice – and the relevant question in this circumstance is whether Afghanistan could and did properly delegate this right to the ICC. Perhaps there is an argument that it couldn’t or didn’t, but the United States doesn’t make it here, suggesting that it is not prepared to engage the core issues that it would almost certainly need to address in launching a credible theory.

Third, the statement politely but ominously signals that should there be a showdown between the United States and the court–e.g., should the court years from now issue a warrant for the arrest of a U.S. person– the United States will expect states parties to “respect” its decision not to join the ICC and place its citizens under the court’s jurisdiction.  However one feels about it, this may over time prove the strongest arrow in the U.S. quiver.  After all, it is tough to figure how states parties would act if torn between their obligations to the court on the one hand and an agitated United States on the other, and it’s anyone’s call whether the court will view its institutional interests as served by forcing the question.  If it decides the answer is “no,” there are at least some mechanisms the Prosecutor could use to focus attention away from this thicket (most prominently, as Alex Whiting has suggested, case selection).

Finally, the statement turns to the matter of “complementarity”—i.e., whether U.S. efforts to hold its personnel accountable were sufficiently genuine for the ICC to forego investigation in accordance with its statute and protocols.  Here, the United States begins by expressing concern that the court has made a complementarity determination without U.S. consent, presumably referring to the analysis the prosecutor performed as part of her preliminary examination into the Afghanistan situation.  Much about this portion of the statement is confusing (Kevin Jon Heller works through some of it here), but fundamentally it falters for the same reasons that the United States’ arguments about nonconsensual jurisdiction falter.  It’s not that the legal arguments are wrong so much as there are no legal arguments. Moreover, one wonders how far the United States is willing to take the principle that outside organizations should not sit in any kind of legal judgment of non-consenting States.  Would that make it improper for the European Union to make the findings that undergird human rights sanctions on a non-EU state? Or for the Venice Commission to write opinions about human rights in Venezuela and Egypt?

It is tough to figure how states parties would act if torn between their obligations to the court on the one hand and an agitated United States on the other.

There are more than the usual number of head scratchers like this in the U.S. statement this year, but those particulars probably matter less than the overall takeaway, which is that the United States does not at this point seem prepared to share any dramatic changes—either as a legal or tactical matter—in how it is approaching the prospective Afghanistan investigation.

Finally, it is worth reflecting briefly on what the U.S. statement does not address.  There is not a word, for example, on the possible activation of the crime of aggression—something that the last Administration opposed not because of concern the U.S. would be implicated (it would be protected by express statutory provisions) but because, among other things, of the chilling effect it might have on building coalitions to address massive humanitarian emergencies like Kosovo and Rwanda without Security Council authorization. Given the specter of ICC prosecution, the United States wondered, would European partners sit on the sidelines rather than act in future Kosovos?  The U.S. delegation’s recent silence on this subject might reflect an assessment that politicking around the crime of aggression is best left to a cross-regional group of states parties that are now actively seeking to address similar concerns.  It might also reflect the reality that the United States’ priorities have shifted.  In another era, however, the United States would surely have found a way to offer a word or two to commend the countries leading this important diplomatic effort, and to work behind the scenes to lend them expertise and support.

Perhaps more significant, though, was the absence of what had become a traditional listing of the many areas where the Court and the United States have worked together to end impunity for the worst crimes known to humanity.  Those areas grew considerably over time and, in prior years, might have been the bulk of the United States’ annual statement.  This year, there is nothing.  That is hardly unexpected given the state of the relationship and, given the Afghanistan investigation, might have been the case under any Administration.

Nevertheless, it is sad to see it go.

Image Credit: GAPS