Thursday, March 24, 2005

The Long Road to Democracy

Daniel Drezner has a post (and there are some equally interesting comments) on the ousting of the President of Kyrgyzstan. He asks whether the news from Kyrgyzstan and the recent events in Lebanon, Egypt, Iraq, and Afghanistan are the first hints of a new “wave” of democratization, in the sense popularized by Samuel Huntington’s book The Third Wave.

I hope that we are witnessing a Fourth (or Fifth?) wave of democratization. However, I have concerns as to whether this is in fact a long term shift to democracy that we are witnessing. And I have even greater concerns that democracy doesn’t come in waves but rather is arrived at after walking a long and idiosyncratic path in each country.

As for whether there is a general shift to democracy taking place, I think we need to temper our optimism with a little caution. For one thing, some of the “reforms” seem more like window-dressing than anything substantive. Egypt’s reforms might be in this category.

Moreover, democratization often leads to instability in the short-run; whether instability or stable democracy defines the long term is an open question. Iraq and Afghanistan are the obvious examples of the concern over long-term stability. With the recent increase in bombings and counter-demonstrations, Lebanon may slip into this category as well.

And, on top of this, the U.S. can still “lose the peace” if it is not vigilant. The short-changing of democratization and stabilization initiatives in Afghanistan is an example of exactly the type of foreign policy we do not want. Nurturing democracies in post-conflict situations is a long, delicate, and expensive process. In Afghanistan, we lost our concentration as we moved on to Iraq. Rather than a beacon of what democracy can do to free a people, it is in the process of becoming a cautionary tale of how hard-won gains can be quickly lost. Iraq is a work in progress, of course, but some of the current indicators are not very good, as discussed in this recent report by the Center for Strategic and International Studies. Then there is Pakistan

And, while we are getting enthused about the Fourth Wave of democratization, let us not forget about the Third Wave. We like to remember the vindication of the generation of ’56 in Hungary and the Velvet Revolution in Czechoslovakia and the triumph of Solidarity in Poland, but let’s also talk about democracy in Russia, Romania, Bulgaria, Serbia, Bosnia, Croatia, and Albania. Where democracy has taken root in these countries it was not from some unstoppable process but because of a hard fought political battles and, in certain cases, international military intervention and significant financial and technical support. Overall, in all of these countries, whether or not democracy took hold had less to do with a wave and more to do with history, political culture, and, at times, international interest and support.

I hope we are seeing an inexorable spread of democracy. That would be nice. But I wouldn’t bank on it, it is much too early to tell, anyway. However, if we really want to make the world safe for democracy, as opposed to making the world safe for foreign investment, then we better decide to gear-up for the long road ahead and find the travelling companions that we will need to see this through.

The Pinochet Saga Continues (plus a few thoughts on Universal Jurisdiction)

In the ongoing saga of Augusto Pinochet, the Supreme Court of Chile found that he had Head of State immunity that prevented from his being prosecuted for the killing of his predecessor, General Carlos Prats. See the BBC report here. Pinochet is also being investigated for human rights abuses under Operation Condor, which persecuted and killed left-wing opponents during the 1970’s, as well as for tax evasion. There needs to be a separate immunity determination for each case. His immunity has been stripped for the Operation Condor case.

As many readers may remember, the current spate of cases in Chile were in part spurred by the attempted prosecution of Pinochet for his activities in Operation Condor by a Spanish judge using universal jurisdiction. As Pinochet was visiting London at the time, the Spanish authorities filed an extradition request with the U.K., precipitating a series of cases in the U.K. over the extradition request, and the role universal jurisdiction more generally. The case had resulted in his being found extraditable (due to treaty obligations) for certain specific crimes, but he was not extradited because he was found to be unfit for trial. Upon return to Chile, the Chilean Supreme Court found him fit for trial and stripped him of immunity.

Universal jurisdiction is the controversial doctrine in which there can be jurisdiction by any court over certain crimes due to the nature of the crime itself (rather than because of it having occurred within the territory or by or against a national of the prosecuting country). Universal jurisdiction has been used in cases of torture, slave-trading, genocide. It is alsor used, in modified form, in anti-terrorism laws.

Some have argued that universal jurisdiction can lead to judicial overreaching and the frustration of diplomatic solutions; see Henry Kissinger’s (a frequent target of universal jurisdiction suits) argument here. Human rights advocates counter that political checks on courts have prevented such overreaching and that, more importantly, universal jurisdiction is one of the best ways to end impunity in countries that neither have operational (or credible) courts nor the geopolitical interest that leads to the creation of ad hoc international tribunals. See Kenneth Roth’s response to Kissinger and the Amnesty International backgrounder. The International Criminal Court, by the way, has been supported as an internationally-accountable mechanism that would eclipse the need of universal jurisdiction by domestic courts.

Wednesday, March 23, 2005

UN better than US at Peackeeping and Nation Building?

Last week's Economist has this excellent article (sub. req'd) summarizing some important empirical studies being done on failed states and post-conflict state building. The conclusions of a raft of recent studies give grounds for optimism: failed states and those on the brink of failure (sometimes called "Low-income countries under stress" or LICUS) can be saved with relatively low investments in peacekeeping and aid. The article discusses a recent RAND study that concludes that the UN is pretty good, on balance, at post-conflict peacekeeping. Maybe better than the United States:

Of the eight UN-led missions it examined, seven brought sustained peace (Namibia, El Salvador, Cambodia, Mozambique, Eastern Slavonia, Sierra Leone and East Timor), while one (in Congo) did not. An earlier RAND study had looked at eight American-led missions and found that only four of the nations involved (Germany, Japan, Bosnia and Kosovo), were now at peace, while the other four (Somalia, Haiti, Afghanistan and Iraq) were not, or at any rate, not yet.

The comparison is not entirely fair. The Americans took on tougher targets: Iraq has more suicide-bombers than East Timor. On the other hand, the UN had punier forces and budgets at its disposal. The annual cost of all 11 UN peacekeeping operations today is less than America spends in a month in Iraq.

The full RAND study can be found here. It is an impressive quantitative effort, with important lessons for current and future crises. For example, it gives emprical support for the view that the group that brings about peace, either through political processes or through prosecuting the war, is often not the best party to secure the peace and bring good post-conflict governance. (In practice, we tend to make the error of assuming every conflict is like Germany or Japan and needs a robust US-style occupation and "Marshall Plan." )

As the Economist points out, there a places in the world where the UN is the only good governance (or best governance) they have ever known. In discussions about UN reform, we need to keep in mind those things the UN is good at --and work to strengthen those capacities --and those the UN is bad at -- and get them off the UN agenda.

Tuesday, March 22, 2005

Customary International Humanitarian Law: ICRC Rules Issued

After a ten-year process, ICRC published this week its report on the rules of customary international humanitarian law ("CIHL), i.e., customary law governing conduct during war. The full report can be downloaded here. Advance warning: I' ve been told from a reliable source in Geneva that the bound version weighs in at 300 pounds! State practice takes up one volume; opinio juris (sound familiar?), the sense of legal obligation that makes state practice into customary international law, takes up another volume.

The stated purpose of the report is to provide the rules of customary international humanitarian in order to fill the gap in the current treaty system and determine the rules that apply to:

(1) states that are not parties to the Geneva Conventions of 1949 and both additional protocols thereto and/or are not parties to other conventions regulating the use of certain weapons (e.g., the Biological and Chemical Weapons Conventions; and
(2) wars that are not international in nature, since the major conventions only regulate, more or less, international or interstate conflict.

Needless to say, I haven't read the entire report, but it is bound to stir up controversy, and not just among those who, like John Bolton, believe CIL is not really law. The report reflects an impressive amount of research into state practice and the conduct of recent wars, and as such is an excellent reference tool, a kind of "restatement" of the laws of war. Lawyers for the Guantanamo detainees will find it particularly helpful, as it sets forth quite clearly the argument that the Geneva Conventions represent, in effect, a legal floor for conduct and that CIHL has expanded beyond the conventions to include a range of other legal norms.

Monday, March 21, 2005

No Sovereignty for Oil?

This and other reports indicate that the oil industry is jumping on board the Law of the Sea Treaty bandwagon, setting up a battle between two key Republican constituencies: the energy industry and conservative intellectuals.

According to this report, oil development companies will not invest in risky undersea oil exploration efforts until property rights over such ventures are settled. But settling undersea property rights with neighboring countries such as Russia and Canada may be difficult since both countries are members of the Law of the Sea Treaty already.

I’m not sure why the U.S. can’t simply sign bilateral agreements with Russia and Canada to settle any disputes over undersea development rights. But I suppose it would be easier to join the existing Law of the Sea framework because those two countries have already agreed to those rules. If so, then this seems like a very strong policy reason to join the Law of the Sea Treaty, notwithstanding continuing objections from leading conservatives. I’m still not 100 percent sure on whether joining the Law of the Sea Treaty is a good thing, but I am certainly leaning heavily in that direction.

ICC Watch: Ugandan Leaders Seek Delay in Arrest Warrants

As I sip my half pint of Weiznenbier "Edelweiss" here at Cafe Leopold in Vienna, I thought I would blog a few short posts using the cafe's free WLAN:

Representatives from North Uganda visited the Hague last week to ask the ICC to hold off on arrest warrants for leaders of the Lords’ Resistance Army. As I have noted before, the Uganda situation presents the ICC with an important first test of its political (rather than legal) judgment. Should the ICC issue arrest warrants here? Or should it hold back to allow Ugandans to work out a settlement with the alleged war criminals that may end up saving many more lives? I don’t know what the right decision is, but I am fairly confident any decision the ICC makes should not be governed by strict legal principles, but with a healthy sensitivity toward the political issues involved here.

Annan to Propose Reforms Today: Human Rights Commission to be Scrapped

Kofi Annan is scheduled to announce in a talk to the General Assembly today that he will push for major reform at the UN, including replacing the HR Commission with a HR council, expanding membership of the Security Council from 15 to 24, making troops serving UN missions accountable for their crimes, redefining terrorism and adopting an agressive nonproliferation system. I will blog more on each of these separate points after I have read the entire release. But I have a couple of initial reactions. I am not as optimistic as Annan and Julian that there is currently any shared understanding of "terrorism" such that the entire UN membership can sign on to Annan's proposed definition of terrorism, which he adopted from the recommendation of the Panel on Threats, Challenge and Change. (For a round-up of critiques -- some arguing the proposed definition is too broad, some that it is too narrow -- see this discussion in the latest ASIL newsletter.) As to Security Council membership, the devil is in the details. Will there be an additional permanent member with a veto? Or two with rotating membership? For now, I think it appropriate to recognize the boldness and seriousness of Annan's plan; this is the most ambitious reform program ever put forth in the history of the UN. Stay tuned.