The use of force in a post-Western International Order

Although I would like to challenge the qualification of the international order as post-western, there is a strong rationale to cross-examine the notions, namely international order and use of force – being aware of their strong intertwining – inasmuch as the relation to use of force is an integral part of the definition of an international order.

Hence thank you for giving me this opportunity to delve into a crucial and very relevant facet of security studies. No matter how important they may be, I will refrain from elaborating on the technicalities of the use of force – such as firepower, maneuver, infiltration, hybrid or psychological warfare… – or issues such as mission creep and exit strategies. I would rather invite you to explore the motives and the legitimation of use of force, against the backdrop of the political and legal framework within which force is being used.

I would therefore invite you to take a deep breath, and ignore for a while the immediacy of the issue in order to address it using a more braudelian approach, diving for a while into the « long time ».

One should not forget that the use of force – which is actually a sanitized XXth century denomination for war – has for centuries been a normal way to conduct policy, to settle quarrels or to gain power. Last year, France and many other countries commemorated the centennial of the outbreak of WWI. The ceremonies provided a reminder of where we come from.

Take the early years of the XXth century. Then war is not only a legitimate way to conduct international relations, it is also a legal one. Following the horrors of the Crimea War, a few constraints on war were negotiated, but they only concerned the way wars had had to be waged – the so-called jus in bello – with rules pertaining to the treatment of combatants, prisoners, or civilians…

Attempts to constrain/channel the reasons to go to war – jus ad bellum – had all almost completely failed. A century ago, war is still a sovereign right of the State. It is lawful, and no candidate to go to war needs any help to bring forth a bounty of motives to do so – at least before nationalism-ridden public opinions.

Whatever the causes of WWI – and there was some debate last year about them – what seems important to me is to look at how these four years of atrocities framed the international order for the 2 decades to come. The matrix which arose from that cataclysm consists in 2 tenets:

· A concentration of power within the State of unprecedented proportions in history: the appearance of the 1st totalitarianism in Russia in 1917, soon after of fascism in Italy in the early 20’s, and its Nazi embodiment a decade later.

· The welcome – at least by the UK and France – intrusion of the United States into European affairs. But with a wholly new paradigm, designed by a constitutional law professor who happens to have been elected the President of the US, Woodrow Wilson. Dwelling on the ideas in the air, he hopes to extend to the international society the same method which has helped to pacify the domestic polity of the US: rule of law, institutions, procedures, to give nations the freedoms individuals enjoy, allowing them to live together peacefully… He wants to « make the world a safer place for democracy », and his worldviews, enshrined in his 14 points of Jan. 1918, are aimed at preventing Europe from falling back into the endless cycle of war, power and destruction. The idea was certainly ground-breaking, but the Europeans were hardly convinced and his fellow Americans even less so, as their senators declined to ratify the Covenant of the League of Nations – ushering the US onto the track of isolationism.

The way these two tenets – totalitarianism and a weak international order – interacted did not, as we know, end too well. This prompted a country attacked in Dec. 1941 to realize that even oceans did not grant immunity. The international order mooted to manage the world after the war was again inspired by the wilsonian idealism, but with a strong dose of realism, insofar as security and balance are provided by a Security Council reflecting the distribution of power in the world – the P5, with permanent seats and veto right.

Such principles, enshrined in the UN Charter, as the sovereign equality of States and the outlawing of the use of force – unless authorized by the Council or in self defence – provided the framework for a sustainable international order based on both law and force. The burgeoning Cold War quickly put an end to this subtle chemistry and put the onus on force only, on power and balance.

Notwithstanding this drifting away from the letter of the Charter, this is how I would define the western international order, a scheme mixing rule of law, procedures, sovereign equality, but also a number of economic and political freedoms – free markets, trade, democracy, civil liberties… - which have defined since 1945, the West. Definitely very different from the paradigm of concert of powers which dominated prevailed throughout most of the XIXth century.

I. A fragile order, with a number of shortcomings

True, this scheme, especially the non-use of force, has been ignored, trampled, crippled during the CW years, where survival and security was of the essence. And even after that. The reason for it is that international law suffers from a certain weakness, an inbuilt weakness.

1. international law is fraught with a high level of indetermination, as a consequence of both the political circumstances of its drafting – always a source of ambiguity – and the accumulation over time of successive layers of sometimes contradictory texts, negotiated at different times an in different places.

Let us just have a look at the core rules governing the use of force.

- art. 2.4 of the UN Charter, by which its signatories commit to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” ;

- but art. 51 allows for the “right of individual or collective self-defence in the case of an armed attack (…) until the Security Council has taken measures necessary”.

Definition of the notion of “threat or use of force” is quite vague, and eligible to many interpretations. What if the use of force is not obvious? Or difficult to prove, such as in undercover operations? Or if it is part of a cycle of reprisals? Does self-defence need, in order to be triggered, the first gunshot? or, as we have witnessed recently, does an attack of State A on State B qualify as use of force only if troops in uniform with insignia from State A show up uninvited on the territory of State B ?

2. A second cause of that weakness of international law is on the one hand linked to the political nature of the body called to interpret it – the UN institutions, most of the time the Security Council, sometimes, albeit rarely, the UNGA – and on the other hand to the absence of an authority able – or even entitled – to enforce the decision. « There is no weaker and more primitive law implementation system than this one, for implementation is contingent upon the vicissitudes of distribution of power between aggressors and victims », wrote Hans Morgenthau, a former professor of international law who had become one of the great theorists of international relations, and one of the founders of the realist school in this field.

The fact that the judge is the UNSC, an indisputably political body, prejudges the matter. It explains why the number of cases when art. 2.4 of the UN Charter has been breached could range, depending upon the definition used, from twenty to several hundreds. Indeed, the right of self defence cannot be invoked in such cases as the French-British intervention in Suez in 1956, the invasion of Hungary, Czechoslovakia and Afghanistan by the USSR, the invasion of the Dominican Republic and Grenada by the US, the invasion of Northern Cyprus by Turkey, or the US-led attack on Iraq in 2003.

Sure, States have always tasked their best legal counsels and diplomats to bring up creative arguments in order to prove that they were acting in full compliance with international law, at least some chunks of it. Sometimes it had to be conceded that international law was just not good enough. Here is what Dean Acheson, then an adviser to President Kennedy, wrote after the Cuban missile crisis: « law does simply not deal with the issues of ultimate power (…) survival of States is not determined by law ».

II. Use of force after the end of the CW

Whether or not it is of our liking, whether or not it satisfies the rational mind, this is the order still in place today, 70 years after having been established. If we defined it as a western international order, I see no reason to requalify as post-western.

Still it is appropriate to have a close look at the ways it works, quite different from the CW model. Actually it has prompted a whole array of instances of use of force, which certainly would warrant a full semester of studies in your UW.

What we have witnessed since the early 90’s is a flurry of international operations mainly governed by humanitarian and security motives, with an emphasis on the former during the 90’s, and an emphasis on the latter after 9/11. Those motives were strong enough to build consensus and legitimacy both at home – under the banner of a “just war” - and sometimes, but not always, abroad, where it was also considered as “war of choice”.

While the 1^st Gulf War had been waged, with full UNSC support, in the face of a blatant violation of international law that threatened to unravel, at the end of the CW, the political order, most subsequent wars in that decade (90’s) were waged under the flag of liberal interventionism, for humanitarian reasons. Be it in Somalia (USA), Haiti (USA), in Bosnia (Europe + USA), in Kosovo (NATO), in Timor or in DRC, with or without the consent of the UNSC, these 8 instances of use of force, which later paved the way for a new approach of IR, the so-called R2P, as a counter-weight to national sovereignty – an approach alas short-lived.

What these operations have in common is that they were quintessentially western, in their motives – humanitarian, HR, prevention of ethnic cleansing – rather than dictated by considerations of power, spheres of influence or even simple security.

That paradigm has changed with the occurrence of 9/11, when the “global war on terrorism” took the upper hand in the USA, offering an appropriate banner for all interventions, first in Afghanistan, then in Iraq, where security, in this instance the need to eradicate terrorism, offered the main rationale for action – although this rationale was highly controversial in the case of Iraq.

The instances of use of force that have occurred since 9/11 dwell on a mix of security and humanitarian considerations, be it in Africa (Darfur, Chad, Ivory Coast, CAR, Mali in 2013), in North Africa or in the Near East, as we witnessed in Libya in 2011 and, lately, in Iraq, with the fight against Daesh.

Methods are diverse, and so are tactics, and even motivations, or legitimation. But there is at least one common denominator, which is the belief that the ultimate remedy to the plagues of ethnic cleansing, terrorism or tyranny lies in the free play of democracy, within a framework of rule of law provided by a functional State.

This is a fundamentally western concept, which we can be traced back to the old wilsonian concept of ensuring peace by making the “world a safer place for democracy”. A concept which, by the way, was rejuvenated in the post-WWII years by the successes in establishing stable and peaceful polities in Germany, Italy and Japan.

To say the least, results have been mitigated, and what we witness now in many parts of the world where tyrants have been taken out is, sometimes after tedious efforts and often numerous casualties, chaos, lawlessness, civil war, or failed States, or at least fragile and unstable States still in need of support from their foreign mentors.

What certainly deserves attention is how the pretext of humanitarian interventionism is used to forward agendas driven neither by liberal motives nor by security imperatives, but by familiar power games. I have of course in mind the way Russia used the pretext of the protection of civilians in the Caucasus in 2008 and then again in 2014 in Crimea and in Eastern Ukraine to regain territorial positions lost in the wake of the breakup of the USSR and to rebuild a sphere of influence.

Although such behavior has outraged the West, Russia has been careful to avoid blatant breach of the order set in 1945, and used such tricks as a hastily organized referendum in Crimea, followed by annexation, or stealth military support in Donbass, while at the same time denying adamantly any involvement.

By way of conclusion, I would like to emphasize that according to my characterization of the international order, it is still definitely western, based on the rule of law and sovereign equality. The fact that law has been – and still is – subject to numerous breaches and encroachments does not disqualify it as law, it is simply a sign of its inbuilt fragility, of its high permissiveness, fraught with loopholes and exposed to circumvention.

NB : all views expressed in that paper are strictly my own and do not express in any respect those of the French government.