What is state failure? See my conceptualisation of state failure on the right flank below.

Thursday, August 2, 2007

On the duty of vigilance

MStFB Afghanistan update
Joshua Foust over at Registan has recently discussed the Afghanistan coalition's reliance on air strikes again (beside a number of other issues), a topic to which I have also payed attention more than once in the past. One of the new inputs to such a discussion may be NATO Secretary General Jaap de Hoop Scheffer's recent declaration, mentioned by Joshua Foust, that NATO may endeavour more in the future to use lighter bombs on its CAS sorties.
Since one of the ways there could be less civilian casualties (which air strikes tend to produce) would be to accept losing a lot more soldiers, and since 1) that wouldn't be fine with soldiers, obviously; 2) it wouldn't be fine with the public in troop-contributing countries, either; and 3) it seems even dangerous now to suggest that, because that would threaten the sustainability of ISAF operations even (read this article in the Telegraph to see where British casualty rates are right now), one has to look at other possibilities as well. And for moments like that there is always Pakistan to consider. In a comment of mine over at Registan I quoted an American officer from Sean Langan's documentary 'Meeting the Taliban', an officer who served, at the time the film was made, in Kunar province, and talks in the documentary of how frustrating it is knowing what's going on over the Pakistani border, being privy to the intel and so on (and with Hizbi Islami fighters taking potshots at him and his men from several directions at the time that interview was made, in the middle of some forest during the night). I found that quite telling indeed.
So I decided to devote a few remarks in my comment there to the issue of what international law may currently tell us of a situation when a supposedly (emphasis) independendently acting non-state actor carries out attacks from the territory of one state against another (likely but not necessarily a neighbouring) state, thus doing so from the effective protection of an international boundary, having rear-bases to operate from, within that international boundary. This issue is complicated indeed. International law hasn't changed all that much since the UN Charter was written, while of course the world has, and so it could be claimed that international law just simply doesn't have a coherent answer to a rather pressing issue of nowadays.
I will copy here a relevant part of my comment posted over at Registan originally. It's rather beneficial for this site after all, since it is supposedly devoted 24/7 to the issue of state failure (and the scenario with the non-state actor's attacks from a weak state's territory very much matches my definition of state failure, in being a negative spill-over effect from state territory not under sufficient control of an internationally recognised government). I have to point out, though, that even when I'm writing my Uruzgan Series, focusing as a case study on the Dutch mission in Afghanistan, which, as my more regular readers will know, is a current focus of this site, in fact I'm doing research that is valuable for my purposes - Uruzgan, as I said once, is a bit of a microcosm of all that's going on in Afghanistan, while Afghanistan itself is a microcosm of all that's going on in the name of state-building or even more generally in the name of development, and those issues are actually part of the quite relevant broader topic of how global governance might deal with the sort of negative spill-over effects that state failure is about. Nevertheless, I do appreciate the opportunity to comment on something more directly related to the issue of state failure.
So, copy, paste, and abracadabra, here's my comment (sorry for not putting it into fresh words, but I just don't have the time to do that right now). International lawyers are of course encouraged to step forward and explain to me if (and where) I'm wrong in my argumentation below.
"As to the Pakistani sovereignty argument. Well, there is the Armed activities on the territory of the Congo case from before the International Court of Justice which might be pretty relevant here. I have read the really lengthy judgement back at the time when it came out. And I have to report that international law and international lawyers are still mostly stuck with a dreamed up Westphalian image of the world, but in an inconsequential manner, actually. In its decision the ICJ essentially said that neighbouring countries can’t do anything on the territory of the DRC, unless it is the DRC that attacks them, which would be the only case when they could use their right to self-defense (based on the UN Charter). As to whether it is a breach of the ‘duty of vigilance’ when a government (such as that of the DRC) doesn’t stop a non-state actor from attacking another state from within its own internationally recognised boundaries, they concluded that it’s not a breach in the case if the government doesn’t effectively control the given area from where attacks are launched by the non-state actor.
Logical? Absolutely not.
It is essentially saying that military action, by the state that is threatened by a non-state actor, is aggression, because it is the harbouring state’s territory that is attacked then, but it’s not a breach of the duty of vigilance on the part of the harbouring state if its territory harbours an aggressive non-state actor, since it’s not really the harbouring state’s territory. Mind-boggling, really.
To translate this to the Pakistani context, for simplification I’ll talk of an Afghan-Pakistani equation. If Pakistan were to claim that it doesn’t control its tribal areas effectively (it hasn’t claimed that to my knowledge, actually), then Afghanistan couldn’t attack, because it would be an aggression, and A’stan couldn’t even claim that Pakistan is in breach of its duty of vigilance. However, since Pakistan does claim it is doing everything possible in its tribal areas, and its stance usually is that the Afghan government and ISAF/OEF forces should do more to control cross-border movements, the situation is more complicated. It would be interesting to see this case before the ICJ and what ruling they would come to then. I do think, though, that the Pakistani line of defence would probably be that Pakistan is the victim, and it is the Afghan government and the international forces that are in breach of their duty of vigilance. (If you think back to the sort of things Musharraf said before his spring Ankara meeting with Karzai in Turkey, it is more than realistic to expect that they would be arguing like that.)
A different scenario could be the Security Council bringing a decision about this. The Security Council has already shown understanding to concerns by a state about a non-state actor’s activities, allowing military action in response to that concerned state in at least one very relevant case (9-11). But would the Security Council back similar action inside Pakistan?
However, this of course is not only an international legal issue. The U.S. wouldn’t push this case as far as the Security Council, really. The way to go about this is informally working out some arrangement, as it has been done up till now, although up till now arguably not enough has happened."
Looking beyond the Pakistani case then, a way to revolutionise international law in favour of global governance could be a reinterpretation of the duty of vigilance, so it seems to me. It could be a breach of the duty of vigilance when there are negative spill-over effects from a state's territory. That's not a breach in response to which, say, UN bombardment should follow - that couldn't be further from what I'm proposing. Instead the official finding of such a breach would underline the need for a cooperative interpretation of the principle of sovereignty (the very essence of responsible global governance, actually), and sanctions should only follow non-compliance with that latter principle instead.

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