A Framework for Comprehending Sovereignty

A Framework for Comprehending Sovereignty

by

Howard Adelman

As in a recipe for baking a layered cake, I begin with the ingredients. In a cake, the two main elements are usually, but not necessarily, flour and water. The two main elements in the case of sovereignty are state and nation. That does not mean that both are always present. When Louis XIV of France said, “L’État c’est moi,” France still consisted of a number of ethnic and linguistic groups, the Basques in the south, the descendants of the Ligures in the south-east, the Normans in the north descended from the Vikings, and the major group of Gauls and Belgae that were dominant in the territory that became France. There was no singular French nation at the time. But there was a state, and Louis XIV was the quintessential absolute monarch of that state.

While the nation was multiple, the state and the sovereign were one. That meant that the ability to raise taxes, to require the citizens of the French state to pay monies to the state, belonged to Louis XIV as the embodiment of the French state. This was the material dimension of sovereignty. At the same time, Louis insisted on a monopoly on coercive power within the territory of the state. As absolute ruler, any lords of the realm had to pledge their control and use of military power to Louis XIV’s purposes. This was the coercive dimension of sovereignty and the move towards the state having a monopoly on the use of coercive power. Finally, Louis XIV had absolute jurisdiction in making the laws of the land. Combining all three, Louis XIV controlled the exercise of three key elements of the state – material wealth, coercive power and legal authority.

Sometimes the state precedes the constitution of a nation. This was true in France. This was true in the United States. This was true in Canada. Some countries, such as Canada, never did forge a singular strong nationality, but a layered one in which all citizens could belong to the Canadian nation, but many could be Québécois, Ojibway, Cree or Inuit as well. Further, that sense of common identity developed and shifted over time. The bond formed was not primarily external and expressed through the formal and legal mechanism of citizenship, as in a state, but could be said to be intuitive characterized by informal bonds that tie together the members of a nation.

A nation has a national consciousness – a shared sense of group identity. That is its heart. A nation has a governing idea. In contemporary Canada, it may be the concept of a mosaic and a collective concern for the well-being of each of its members as manifested in one realm, a single payer system for guaranteeing health care. In the U.S., it may be a very different conception – a melting pot and a realm independent and separate from the power of the state, such as the idea of a frontier that is more about the personality of the nation than an actual territorial boundary. That is its heart.

In a nation, there are rules as well as ruling ideas, but those rooted not so much in formal authority as in a sense of authentic authority. In Canada, it may be the reputed civility, the politeness of Canadians. In America, it may be bluntness and the wide scope given to the expression of free speech so that Alan Dershowitz could insist that the American Civil Liberties Union intervene on behalf of Donald Trump against the charge of inciting violence at his rallies because, unless a direct connection between his words and the actions of the individuals committing the assault against a peaceful protester in the midst of the rally, can be established, the command to, “Get her out,” does not constitute incitement to violence unless the individuals committing the assault were paid agents of the Donald Trump campaign. In America, even though its extent is debated, the right of freedom of speech is much more broadly defined than in other political jurisdictions. Behind the constitution, this inchoate sense of the nation is often cited to justify legislation and interpretations of the formal legal system.

In addition to its heart and head, a nation is a source of empowerment through the exercise of its sense as a nation and its members’ identification with and service to that nation. These are the guts of a nation.

If a state consolidates its material foundation, its legal system and its ability to use coercive power over time, the process is directed towards making the unit more effective, more coherent and more unified. In the case of the nation, its dynamic, its changing qualities and characteristics, are much more on display and in play. The formation of a nation can almost always be said to be an activity in motion. When sufficient numbers share a singular identification to become a source of collective energy working for a common goal, a nation is formed that can be characterized by a unique energy source rooted in creative rather than coercive power.

State                                        Nation

Power                   Coercive                                     Creative

Authority               Formal or Legal                        Authentic

Influence               Material                                     Intellectual

While most states consolidate, their formation is independent of and usually precedes the formation of the nation that dominates within a state. This was not true of the ancient Hebrew nation-state or of the modern Dutch nation-state where the group developed a sense of itself as a nation before it constituted itself as a state. The Torah provides the narrative of the formation of the Israelite nation before there ever was a state. A nation is constituted by a set of reigning ideas that provide a profound intellectual influence on the spirit of a nation. The will of that nation becomes the source of authority for defining a nation, its historical purpose and the use of the spirit of a nation or its collective creative energy.

Opening Friday’s roundtable on sovereignty, Tom Axworthy cited Jean Bodin as his primary historical authority for defining sovereignty. Jean Bodin, a sixteenth century French jurist, philosopher and professor of law at Toulouse, was best known for his theory of sovereignty which defined sovereignty in terms of formal legal rule backed up by a monopoly on coercive power for governing a defined territory. What is less well known is that Bodin also wrote on the economy in a 1568 treatise, Réponse de J. Bodin aux paradoxes de M. de Malestroit in which he clarified that a state not only depended upon a legislated regime backed by coercive force, but a material foundation in which monetary policy (the amount of money in circulation) and the productivity of the regime were to be kept in some form of reasonable balance. Material wealth was not simply about the quantity of money – the increasing importation of silver and gold from South America at that time – but about the ability of the state to organize the production of goods and services consonant with the money supply.

However, in Bodin, the stress on these three dimensions of state sovereignty ignored the role of the sovereignty of the nation. Bodin provided a rationale for the consolidation of power, legislative authority and material wealth in a singular and dominant authority. Though Axworthy, in his presentation of a realist view of sovereignty, ignored the material dimension, his most significant omission was his obliviousness to the sovereignty of the nation and blindness to other ways in which the sovereignty of the state could be grasped.

Elizabeth Riddell-Dixon’s account stood in sharp contrast because she stressed the importance neither of military power nor the direction of material acquisition nor even of state legislated laws. International law set the foundation for recognizing the boundaries of a state in the north of Canada – in this case, the international law of the sea – backed up by scientific research that provided the intellectual substance for applying those norms. All this was part of the expression of the spirit of a nation even in a realm where there were no members requiring protection.

This is also why an international legal regime needs to be developed governing climate change based on extensive scientific research. Not for expanding our wealth, but for making the need to resort to coercive force obsolete and for ensuring human survival. Sara French-Rooke in her discussions of sovereignty when applied to northern peoples stressed the central place of personal security rather than state security, the emphasis again on survival rather than the accumulation of wealth ad infinitum.

This involved a very different conception of sovereignty, one rooted in a universal sovereign in which nations and states are simply trustees for a segment of territory on behalf of an eternal sovereign. The state and the nation may both come into existence in history, but behind and before that emergence there needed to be a magisterium universalis.

When there is an effort to make the universal sovereign the actual ruler, you then move towards an idealistic conception of sovereignty. For the ultimate authority, which would determine whether a state treated its citizens adequately, would be a source of universal governance. This was the intent of R2P. It was neither the intent nor the mechanism of the law of the sea, for the latter always depends on states opting into the process and, in the end, making the consent of the relevant states critical to the implementation of the universal norms.

There are clear implications of pushing one doctrine rather than another. In the realist or Bodin construction, policy would suggest that Canada needs a robust sea presence in terms of updated or new icebreakers reinforced by navy patrols and air surveillance to exercise its sovereignty. But Riddell-Nixon argued that neither coercion, the quest for material accumulation nor formal domestic legislation have been critical in determining the boundaries of sovereignty of Canada in the arctic region.

This framework also allows us to understand both shared and shattered sovereignty. In shared sovereignty, agents share formal authority and usually defend that shared authority by joint action of military forces. Revenues from resources may also be shared as between Sudan and South Sudan. Shared sovereignty may be between a domestic jurisdiction below the state level – such as a province – or there may be shared authority between a state and an external agent. Thus, Canada in matters of defence has largely surrendered its autonomous control of coercive power, at least where it concerns the defence of the North American continent, to the overwhelming might of America. When Canadians were debating over whether to have or get rid of nuclear-tipped Bomarc missiles in Sudbury in the Diefenbaker-Pearson era, this was a decoy. Americans had already deployed nuclear-armed missiles across the north of Canada, something few Canadians knew anything about at the time.

Sovereignty also shatters. It may be among Kurds, Sunnis and Shiites in Iraq or repressed as in the case of Turkey dealing with its Kurdish minority or a source of rivalry as between the Dinka and Neuer in South Sudan. Kenya has yet to forge a fully unified nation from its dominant tribes. In the UK, the Scots are seeking independence and, in Northern Ireland, there is some degree of shared sovereignty between Ireland and Great Britain. Shared sovereignty over control of the old city of Jerusalem has been proposed to resolve a major impasse in the peace negotiations between Israel and the Palestinians. Shared sovereignty is sometimes a positive response to the problem of a shattered state that stresses divisions rather than unity among the nations that make up a state.

Failed states usually result from the shattering of national identity, not simply because of its multiplicity. The tensions in America are deeply embedded in the mistreatment of America’s black population. I finally watched the marvellous documentary, 13th. The film is based on the thesis that the 13th amendment to the constitution passed to end slavery in the U.S., contained a loophole which allowed discrimination against blacks to be reinstated in new forms of legal coercion when the old forms became intolerable. The 13th amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The loophole is in italics.

When slavery ended, the legal system in the south was used to arrest blacks in large numbers for spurious or minor offences. Southern states used this new form of slavery to build public works through the labour of chain gangs. When that practice was disallowed, the South switched to the use of Jim Crow laws legislating separation of the races and raising the hurdle for exercising voting rights. When Jim Crow was ended with the civil rights movement, the coercive system of black subjugation, though far weaker, persisted and switched to using the law and coercive powers of the state to raise the prison population in the U.S. Even though a task force constituted by Nixon recommended addressing the root causes of drug abuse through therapy rather than incarceration, Nixon introduced a war on drugs knowing it was irrelevant to reducing the drug issue, but as a mechanism for winning the south vote by identifying blacks with drugs and winning support for his unpopular Vietnam War by libelling hippies as stoned potheads.

The war on drugs continued and was enhanced by each presidential regime, including Clinton’s, so that by the year 2014 the prison population had exploded from numbers in the range of 300,000 to numbers in excess of 2.4 million. 40% were blacks. Law and coercion were used to disenfranchise blacks by alleging a spurious massive voter fraud and raising barriers to access voting to both demonize blacks as cheaters as well as retain support among white voters indoctrinated to fear blacks as rapists. The point is that the coercive might of the state, its legislative powers and its material interests can combine to repress a part of the nation and define that part as Other. That effort may turn to Mexican illegal and legal migrants as well, including Hispanic children born in the U.S., who, like blacks of old, were demonized by Donald Trump as rapists and criminals even though the rate of convictions of Hispanics was lower than the rate for native-born white Americans.

There is a material motive to undertaking such efforts since, in the partnerships of government and private business, large numbers of private corporations now have a vested interest in the economics of incarceration and the profits that flow from production facilities in prisons.  Thus, material interest can be united with a state’s control over coercive power and its legislative authority to repress part of a nation to enhance the identity of another part and unite that part through inculcation of the fear of the Other.

A healthy nation-state tries to ensure that all its citizens can identify with a nation that will be treated equally by the state, whatever the sub-national grouping. However, the coercive powers of the state, its legislative powers and its objective of facilitating the acquisition of material wealth can be combined to throw stones at and eventually crack and even shatter the windshield of the state.

 

With the help of Alex Zisman

Canada, thankfully, is travelling a path in the opposite direction.

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The Structure of the State: Parshat Yitro/Jethro Exodus 18:1 – 20:23

The Structure of the State: Parshat Yitro/Jethro Exodus 18:1 – 20:23

by

Howard Adelman

Last week I wrote about political leadership from the perspective of the Torah. This week my subject is the distribution of the various powers of the state dedicated to protecting and serving a nation beginning with the role of foreign affairs and international diplomacy. How should political leaders deal with political leaders from other states? For Jethro is not only Moses’ father-in-law; he is also the high priest of the Midianites. How does a foreign religious leader also emerge as a confidant and critical advisor of Moses in the design of the polity for the Israelites? How and why did a foreign personality presume to do so? Was it simply because he was “family,” that he was mishpacha?

This week’s parsha is not only about Jethro. That is the subject of chapter 18. But chapter 19 is about the Israelites camping in front of Mount Sinai and their encounter with God. Chapter 20 is about Moses receiving the Ten Commandments and Moses’ role to serve as an intermediary between the people and God and, therefore, the defender of the constitution, the basic covenant for a nation. What do these events that follow and historically rival the escape from Egypt have to do with Jethro coming to Sinai with Moses’ wife and two children to meet with Moses and subsequently offer his political advice?

As stated above, Jethro was a Midianite priest. He may also have been a Prince of the Midianites, for he is called a Midian leader in some translations, but given the difficulties and indignities his daughters suffered at the hands of other shepherds at the well where Moses met his future wife, I very much doubt it. But prince or priest, whether he combined the office of political leader as well as religious leader is not the issue for me, for it is his religious leadership that is important.

Recall what Aaron’s role was as High Priest when there was no temple. Aaron’s initial job was to be the intermediary between God and Pharaoh. When Moses demurred from accepting his divine assignment to represent the Israelites in the negotiations with Pharaoh to free the Israelites from Egypt, Aaron was appointed as God’s spokesman. Aaron was made Secretary of State. Aaron had the job of being a light unto the nation with the most symbolic job assigned to a High Priest, lighting the candles on the menorah so that Israel could be the light to other nations, whether in dealing with enemies in pursuit or nations the Israelites would face in front of them. If Moses was the political leader of the Israelites, Aaron, his older brother by three years, was appointed as foreign minister, or, as designated in the United States of America, Secretary of State. It was Aaron who had the job of guiding the ship of state in foreign waters (and in foreign lands). Thus, when we encounter Jethro here and he is called a Midianite priest, we recognize his role as the nation’s chief diplomat.

We know that Moses worked for his father-in-law after he married Zipporah for almost a decade and during that time presented him with two grandsons, Gershom (stranger) and Eliezer (God’s helper). Their names are ironic because it is Jethro who will come as a stranger to the Israelites at Sinai and will serve as God’s helper by being Moses’ helper, not simply, as it is said, because he gave Moses a refuge from the sword of Pharaoh, but in allowing Moses to emerge subsequently as a person worthy of being the intermediary between God and the people of Israel.

When Jethro as a courtesy sent a message that he was arriving at the Israelite camp with Moses’ wife and two sons, Moses himself, not just Aaron, went out of the camp to greet him, bowed down to him in respect and kissed him. The first lesson in statesmanship is that when a foreign minister visits, it is the political head of state who should greet him. Further, not just the leader, but the ambassador from another nation must be welcomed, not as a supplicant, but as one worthy of both love and respect.

Jethro and Moses then returned to Moses’ tent where Moses told his father-in-law everything that had taken place since he left the land of the Midianites on the Gulf of Eilat/Aqaba. He did not tell the story of what he did, but of what God did to Pharaoh as the enemy and how God subsequently saved the Israelites from the hardships they encountered in the desert. In other words, Moses did not raise himself up through what happened, but offered Jethro a detached portrait of the political landscape for which God (or history) was responsible. Jethro responded by summarizing the tale and concluding, “I know that the Lord is greater than all other gods, for he did this to those who had treated Israel arrogantly.”

Arrogance has been considered one of the seven of the worst character defects. Egyptian pharaohs were the epitome of arrogance for they considered themselves to be above other mortals, to be embodied gods. Arrogance is a denial of personal vulnerability. The corollary of raising oneself on a pedestal entails treating others as only worthy of contempt. Pharaoh was overbearing and overestimated his power to an undue degree. Jethro contends that the real and most basic reason God treated Pharaoh so badly was that he was a conceited, self-important prig with a false sense of his own enormous grandiosity.

Contrast those characteristics with those belonging to Moses or Jethro, but our focus here must be on Jethro. First of all, instead of parading his own idolatrous gods as greater than the Israelite god and engaging in a macho contest, Jethro praised YHWH as “greater than all the gods.” He behaved in precisely the opposite way than Pharaoh. In doing so, Jethro did not renounce his idolatrous religion; he merely recognized the God of Israel as the greatest among the gods. Jethro was not a believer in monotheism. Nor is there any suggestion he had himself circumcised and converted to Judaism as suggested by some interpreters.

[Some Talmudists claim that when the text says wa-yihad Yitro (Exodus 18.9), translated as “Jethro rejoiced,” this meant that Jethro self-circumcised, that he felt a stinging in his flesh and when you exchange the ח with a ה to be wa-yihad, then the meaning is that Jethro became a Jew. I think this is farfetched and does not at all fit in with the thrust as well as the details of the story.]

Note also that Jethro paid no attention to the part of the story when God saved the Israelites in the desert and provided water and manna. It was not God as a material provider that interested him. He came as a foreign minister, not as an economic minister focused on material things. His concern was authority and power and how it was to be exercised. Jethro said that God was greater than all the other gods because he protected His people and punished those who would treat them “arrogantly.” That is the function of statesmanship. Jethro then made a sacrifice, brought a burnt offering and joined Moses, Aaron and the elders of Israel in a festive meal. What Jethro did was also a diplomatic reproach to Moses and Aaron, as well as the 600,000 Israelites because, until Jethro arrived and performed his sacrifice, none of the Israelites had deemed recognizing the power of the Other as important.

The next day Jethro observed Moses acting as a judge and welfare officer when his people came to him with requests and the need to resolve disputes. That part of the story reminded me when I was first introduced to Yasser Arafat in Gaza. (He had not yet moved to Ramallah.) It was 9:30 or 10:00 p.m., which I thought was quite late for a political meeting. We were ushered into a very large room with chairs all around the sides. I was totally shocked to see about half the chairs filled. My memory may be exaggerating, but I thought there were twenty-five people waiting. We were told they were waiting to see Arafat. We were then ushered into an anteroom. There were four people waiting there. We were taken past them right into Arafat’s office.

The office was plain and unadorned. We were introduced, but the meeting was perfunctory – evidently just a matter of form. When we left, I asked the person who was our intermediary what all those people were doing so late in the evening waiting to see Arafat. He informed us that it is the same every evening and seven days a week. People go to Arafat to complain about a neighbour’s dog barking (that literally was one of his examples), to ask for funds to bury a relative or help a child get medical help. Arafat dispenses money, rulings and advice sometimes until three in the morning. That is what Jethro saw Moses doing.

13 The next day Moses took his seat to serve as judge for the people, and they stood around him from morning till evening. 14 When his father-in-law saw all that Moses was doing for the people, he said, “What is this you are doing for the people? Why do you alone sit as judge, while all these people stand around you from morning till evening?”

15 Moses answered him, “Because the people come to me to seek God’s will.16 Whenever they have a dispute, it is brought to me, and I decide between the parties and inform them of God’s decrees and instructions.”

17 Moses’ father-in-law replied, “What you are doing is not good. 18 You and these people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone. 19 Listen now to me and I will give you some advice, and may God be with you. You must be the people’s representative before God and bring their disputes to him. 20 Teach them his decrees and instructions, and show them the way they are to live and how they are to behave. 21 But select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens. 22 Have them serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can decide themselves. That will make your load lighter, because they will share it with you. 23 If you do this and God so commands, you will be able to stand the strain, and all these people will go home satisfied.”

24 Moses listened to his father-in-law and did everything he said. 25 He chose capable men from all Israel and made them leaders of the people, officials over thousands, hundreds, fifties and tens. 26 They served as judges for the people at all times. The difficult cases they brought to Moses, but the simple ones they decided themselves.

27 Then Moses sent his father-in-law on his way, and Jethro returned to his own country.

If the function of a foreign minister or secretary of state is to represent his nation so that it can be a light unto other nations when dealing with them (not just representing a nation’s interests in Kissinger’s terms of realpolitik), the function of a political leader is to represent his nation in dealing with God, in dealing with history, in dealing with a nation’s destiny, in interpreting its fundamental constitution. The chief political officer is neither the chief law maker nor the judiciary. After separating the functions of statesmanship and diplomacy from being the head of a nation, the judicial functions too must be delegated to others. Thus, we have a different take on the separation of powers – foreign affairs from leader of the state, leader of the state from chief judicial officer. The next lesson will be about the making of laws, but that comes after Jethro leaves.

How did Jethro then prepare for what took place afterward? First, it was Jethro who told Moses that his job was to be an intermediary between his people and God. Second, as we soon learn, Moses is not the prince of his people, is not the lawmaker, but only the receiver of the fundamental constitution for the people, the covenant with God, which is a constitutional set of rules recommended for all nations. Third, Jethro had to go away because the people had to learn two other lessons that could not come from Jethro. For Jethro was an idolater; the Israelites were commanded to put away the worship of all idols.

“You shall not make [images of anything that is] with Me. Gods of silver or gods of gold you shall not make for yourselves.” (Exodus 20:20) This was the culmination of all the commandments the Lord gave to Moses and was a repetition of verse 4: “You shall not make for yourself a graven image or any likeness which is in the heavens above, which is on the earth below, or which is in the water beneath the earth.” The Israelites were not forbidden from making images, but graven images, objects or things worshipped as divine. “Graven” is the right adjective. Don’t make what is dead and treat it in a solemn way.

There was a second reason Jethro had to leave. He came from a hierarchical society. In contrast, God wanted to teach the Israelites obedience to the constitution, the covenant intended to guide all peoples. “And now, if you obey Me and keep My covenant, you shall be to Me a treasure out of all peoples, for Mine is the entire earth.” (Exodus 19:5) But for the Israelites to be a truly holy nation, they had to be a nation of self-legislators, a nation in which every member was a prince, a democratic nation. “And you shall be to Me a kingdom of princes and a holy nation.” (Exodus 19:6)

Jethro could not teach Moses or his people not to be idolaters, nor that the nation must become one in which all were princes, a democratic nation. Thus, in this parsha, we are provided with the framework for the construction of a state that will serve the nation. Separate foreign affairs and diplomacy from the functions of internal rule and make certain attributes characteristic of that role. Secondly, separate executive power from the judiciary. Thirdly, create a constitutional “monarchy,” that is where the function of the head of state was to be bound to upholding the fundamental covenant or the constitution of that state from the exercise of power and make the head of state the embodiment of that covenant and the representative of that covenant to the people. Fourth, make the state a democratic state whereby the powers of making laws, within the boundaries of the constitution or the fundamental covenant of that state, are made by the people who shall all be treated as princes of the state.

With the help of Alex Zisman

SUNDAY: Foreign Affairs, Diplomacy and the Body Politic

VII: Samantha Power: R2P Applied

VII: Samantha Power: R2P Applied

by

Howard Adelman

When Samantha was appointed to chair President Obama’s Atrocities Prevention Board set up to actually prevent mass atrocities and genocide as a core U.S. national security interest and foreign affairs responsibility, the cheerleaders for R2P jumped with joy, “At last,” they screamed, “Something will be done about preventing, or, at the very least, mitigating mass atrocities.” Indeed, Samantha Power credited the administration with “an unprecedented record of actions taken to protect civilians and hold perpetrators of atrocities accountable.” In reality, the false claim of credit and the inability to mitigate let alone prevent atrocities are two sides of the same coin.

What were these claimed unprecedented actions and accomplishments? And did they have anything to do with the doctrine of Responsibility to Protect (R2P)?

In the next series of blogs, I will take up a number of specific issues on which Samantha Power at one time or another claimed credit was due to the administration for “an unprecedented record of accomplishment”. I will see what if any connection there is to R2P and briefly deal with the claims made and whether any credit is warranted in a number of specific cases. Of necessity, I will have to be very brief and succinct on each crisis. Before undertaking the specific case study analysis, including Darfur, South Sudan, Côte d’Ivoire, Nigeria, Libya, Iraq, Iran, Syria and Myanmar, I want to raise a number of general faults with R2P and then offer two individual cases – of accountability rather than prevention or intervention as illustrations.

As I will try to show in the case studies, when R2P is actually applied to protect populations in peril, such as the Yazidis in Iraq, the motivation has little to do with protecting that very endangered population. And when protecting an actual population as the real aim, as in Libya, the course of events set in motion by the intervention seems to make the situation go awry leading seemingly to many more deaths and atrocities than might otherwise have been the case. When protection or mitigation actually seem possible and could be effective, as in repressing and even eliminating Boko Haram in Nigeria, the conditions for its application are undermined. All of this will emerge in the case study analysis. In this blog, I offer some theoretical reasons why R2P is inherently bankrupt and why this will always be the case. R2P was not only stillborn when the UN endorsed the doctrine universally by effectively gutting its core premise of making sovereignty conditional instead of absolute, but was sterile at its conceptual birth. The genetics of the doctrine doomed it to crashing.

If the dialectics of the analysis of the theory bothers or deters you, wait until you can read the case study analysis. Alternatively, you can skip this blog and go to a second I will write this morning, a brief review of the movie, The Foxcatcher, a movie that presents, but does not go into the mind of a sociopath who could commit mass atrocities.

Part of the problem with R2P is the difficulty of application – the greater the challenges in figuring how to apply the doctrine, the more worthless it appears to become. For its credit depends upon use, but without a proper line of credit, it turns out to be useless, hence contributing to its increasing loss of credibility. And the more it is not used, the more worthless it appears to be. However, these are but the manifestations of the root conceptual flaws in the doctrine. Let’s start with the central premise of the relationship between the sovereign state and its citizens.

In liberal democratic theory, the governors of a state are responsible for its citizenry and accountable to that citizenry for carrying out a state’s responsibilities. ‘Responsibility for’ and ‘accountability to’ are the two intertwined dialectical links between a population and its government. But in R2P, if a state fails in its prime responsibility of protecting its citizens, that responsibility function shifts to the international community which substitutes its own authority for that of the state. State authority is no longer absolute but conditional upon its exercise and removable with failure. The state is reduced to a trustee of the international community. And that international authority that takes over the responsibility for the citizenry is not responsible to that citizenry. So R2P only works if it undermines the principle of democracy. More importantly, when it does not work – which as I will show is the norm – then responsibility itself becomes emptied of any meaning, thereby even more fundamentally undermining the doctrine of responsibility for and to the people.

If we approach the conceptual issue, not from the nature of a democratic state, that is, the collectivity, but from the other pole of the equation in R2P, the rights of a citizen to protection, we get into another dilemma. Citizens not only have rights of free speech, rights of assembly and the other traditional rights necessary for the preservation and enhancement of a democratic polity, but they have a right not to be subject to mass atrocities. This is not just a right not to be tortured or a right to a fair trial or a right to legal representation. The latter are all rights that belong to the individual in a democratic polity. What we have in this case is a collective right, that is, a right of a community within a polity to continue its existence as a community; if the state denies that right by either trying to evict the community to which an individual belongs (ethnic cleansing) or goes even further and tries assiduously to exterminate that group in whole or in part (genocide), then the only way prevention or mitigation can be effected is by granting a group rights. Inherently, however, this puts limitations on individual rights rather than enhancing them.

If an individual has all of the liberal rights, why does he need to be recognized as a member of a group with collective rights? Where is the added value of the collective right to the individual qua individual? Further, one of the paradoxes at the root of the conception of the nation-state is that when a collection of individuals contract among themselves as individuals to transfer all coercive power to the state on condition that their rights are protected, those rights do not include group rights.

The compact between the individuals and the state goes further. The rights to determine who belongs to the state, that is, who can be its members, is transferred to the state. So if a state wants to abrogate the rights of a group, the only way to protect those rights is to insist they belong to every individual member of the state. But group rights only belong to a group and its members within the state, not to all members of the state itself. So if groups within a state are to have specific group rights – such as aboriginal peoples within Canada concerning the rights of a community to exclude non-aboriginal members or revoke the rights of individuals in that group when they marry non-aboriginals – then it is the group, not the state who defines who is a member of that group. If the state assumes responsibility for that decision – as was done in the Holocaust, in the Rwanda genocide and in some cases of aboriginal rights -, then the very idea of a self-perpetuating collectivity with rights within the state is undermined. The fact is, the issue of collective rights is the Achilles heel of a democratic liberal state. Insisting that a state cannot mistreat any of its minorities and, if it does, the collectivity of all states will take over the responsibility, means only that the irresponsibility only gets writ large and exposed for what it is.

So what has actually happened? The Obama regime has sincerely bought into the principle that the U.S. does have a responsibility when minorities are persecuted. And, unlike the United Nations, it is not just a rhetorical buy-in. As stated above, Obama issued a directive that “the prevention of mass atrocities and genocide is a core national security interest of the United States.” But then the most powerful state in the world showed that it could not possibly implement that responsibility – not only for all the minorities being afflicted with atrocities, but surprisingly, not one single one – except when the real and deep motivation is the old fashioned self-interest of the state.

So the issue is not even which group, among all those persecuted, a state should protect. Nor is the issue simply when to apply the doctrine of protection, let alone adopt the last resort of coercive intervention. The inherent incapacity of the most powerful state to protect any group outside its own jurisdiction based on R2P, which requires collective authorization via the United Nations before any action based on R2P is legitimized, undermines both the sovereignty of the state as well as the potency of that sovereignty. Does the endorsement by the UN authorizing military force help, as when the U.N. Security Council authorized military force to protect “civilians and civilian-populated areas” in Libya? R2P does offer permission to a state to act on behalf of the international community, which may provide temporary protection and which can prevent some murders from proceeding, but what happens next? Unless the intervening state or group of states is willing to assume full responsibility for those endangered citizens and not simply provide protection in an acute crisis, then the violence simply recurs in a different form.

Further, if a country decides to become involved, the intervener has to either take full control (unlikely) or to support one side in the struggle, presumably representing those persecuted. Then the persecuted are empowered to destroy their enemies – which inherently means the other side, the persecutors. They take control and sometimes even become the persecutors. Those states which have an interest against that group that have gained power become highly critical of the intervening state as behaving like an imperial power, not as a saviour of minorities. The intervener is no longer the representative of the world community, but only a section of it intent on victory. R2P just becomes a cover for an exercise in imperial power. At the same time, the intervener becomes a producer of victims as well as a protector of victims.

One result is that altruism is depreciated and devalued. Force in the service of altruism is an oxymoron. What is more, the altruism only seems to work when it is intermixed with the self-interest of the intervening state that drives the intervener to assume the full responsibility required to complete the task at hand. Of course, that only further undermines the moral status of R2P. Since the ostensible success, protecting civilians, is difficult to assess and measure, but the body counts, the civilians killed, those wounded as “collateral damage,” are quantifiable – the empirical evidence seems evident for all to see. The cure may be worse than the disease.

What is more, when a state assumes the responsibility for its members, for its citizens, this is an ongoing and continuing duty, not one that ever ends. But intervention inherently demands and requires an exit. Yet there never is an appropriate time to leave by the very nature of the problem. In reality, an intervener leaves when the government of the state within which the intervention takes place insists once again on assuming responsibility, thereby both undermining the R2P doctrine, which is based on the presumption that the will of an individual state is trumped by that of the international community.

Further, the resentment and internal discord within the intervening state are enhanced. A state assumes responsibility for its own citizens, not in gratitude for the “international” community acting as a temporary protector, but because the country has become tired and even resentful of the so-called protector. On the other side, the citizens of the intervener sooner rather than later grow tired of the burden and resentful in turn of the lack of appreciation of those who they sacrificed to protect. Alternatively, the situation gets worse, and the intervener is required to increase its commitment, the self-sacrifice of its citizens and the cost of its project, which in turn enhances the resentment of at least part of the citizenry of the intervening state and exacerbates the divisions and schisms within.

As we shall see, none of these paradoxes and dilemmas has even touched the problem that neither the strongest state in the world and certainly not the international community can possibly assume the responsibility for even a small portion of the atrocities taking place in various parts of the world. So the international community and the intervening state(s) come across as hypocrites incapable of living up to the promises they have ostensibly made.

One of the results of all these inherent failures is a propensity to boast about relatively tiny and insignificant accomplishments, even when one had hardly anything to do with responsibility for them. Before I begin the series of case study analyses, let me offer an example of one case that is neither about prevention nor intervention, but about accountability. The Obama administration supported the arrest of Ratko Mladić and Goran Hadžić and boasted about it. What did that support amount to?

Samantha claimed this credit among a long list justifying her successes as the chair of President Obama’s Atrocities Prevention Board set up in 2011. It is true that the R2P doctrine is not only about prevention, but also includes punishment of those guilty of crimes against humanity and genocide. But that is not what is novel about R2P. As President Obama said himself on 2 April 2013 upon learning of the arrest of the Butcher of Bosnia, Ratko Mladić: “Fifteen years ago, Ratko Mladić ordered the systematic execution of some 8,000 unarmed men and boys in Srebrenica. Today, he is behind bars. I applaud President Tadic and the Government of Serbia on their determined efforts to ensure that Mladić was found and that he faces justice. We look forward to his expeditious transfer to The Hague…From Nuremberg to the present, the United States has long viewed justice for war crimes, crimes against humanity, and genocide as both a moral imperative and an essential element of stability and peace. In Bosnia, the United States – our troops and our diplomats – led the international effort to end ethnic cleansing and bring a lasting peace. On this important day, we recommit ourselves to supporting ongoing reconciliation efforts in the Balkans and to working to prevent future atrocities. Those who have committed crimes against humanity and genocide will not escape judgment.”

That is a fair and judicious statement. Obama gave credit where credit was due for the arrest – to President Tadic and the Government of Serbia that first gradually asserted control over the Serbian military. The effort was helped both by EU pressure requiring the arrest of the wanted war criminals as a condition for the entry of Serbia into the EU and the British military and British politicians, particularly Paddy Ashdown when United Nations High Representative in Bosnia and Herzegovina in 2004. Obama did not link the arrest with R2P, but with a long American bipartisan tradition going back to the Nuremberg trials after WWII. He also gave credit to the Clinton administration for its leading role in the intervention in the former Yugoslavia and for forging the peace agreement. The only credit he gave his own administration was for a recommitment to supporting ongoing reconciliation efforts in the Balkans and his government’s work to prevent future atrocities. None of this had anything to do with the arrest of Ratko Mladić and Goran Hadžić.

Even the rewards offered for information leading to his arrest, initially €1 million by the Serbian government, upped in 2010 to €10 million, and $5 million dollars offered by the American government, subsequently supplemented by an offer of €1 million by the U.S. embassy in Belgrade just for information on his location, had nothing to do with those arrests. Initially Mladić was protected by the governments of Serbia and Republika Srpska, then after 2002 by the Serbian army and the army of Republika Srpska, then by paramilitary extremist organizations similar to the ones that helped Nazi war criminals escape Germany after WWII, and finally only by members of his own family. Neither strenuous UN and NATO efforts nor offers of bounties led to his arrest – just good police work and serendipity.

Goran Hadžić was the last fugitive war criminal wanted by the International Criminal Tribunal for the former Yugoslavia and he was arrested by Serbian police just over a month after Ratko Mladić near the village of Krušedol, where he had been hiding since his indictment by the ICTY. He had tried to sell a stolen Modigliani painting and police tracked him down. America had no more to do with this arrest than with the capture of Ratko Mladić. President Obama’s statement on Goran Hadžić’s arrest was in the same vein as the previous one, with one exception. “Over the course of its 18-year history, the United States has been and remains a steadfast supporter of the ICTY and its critically important work.” A smidgeon of credit was taken for supporting the ICTY. Was this what Samantha Power was declaring as an example of an “unprecedented action”?

My country may have been the sponsor and midwife of R2P. I continue to believe in military intervention – when possible and when needed. But the overarching doctrine supposedly providing a rationale for such actions is a far greater hindrance than help. It is much better to establish practices than to proceed from an abstract principle, especially one so terribly flawed.

Putin versus the Modern Nation-State System

The Development of the Modern Nation-State System

by

Howard Adelman

 

Putin versus the Westphalian Order

To comprehend the enormity of what is at stake in Putin’s Russia seizing and annexing part of Ukraine and now threatening eastern Ukraine, it is important to but the current crisis within the long trajectory of the development of modernity and the modern nation-state system. Putin is challenging the system on two basic norms: (1) prioritizing the unity of a large national group over the sanctity of state borders; (2) allowing powerful states through the use of their military might and economic leverage to reduce adjacent states to satraps and to change borders at will. These challenges have contributed to enormous international political turbulence and the risk of an expanded war is now possible. How to respond and with what degree of intensity and effort depends on understanding what is at stake. This blog, which borrows extensively from my previous publications, is intended to provide a succinct historical narrative to clarify what has been fought for and won in the existing international order.

In many world histories, the following radical shift at the beginning of the modern era likened our present time to that period. “Our current period is reminiscent of the turbulence and chaos that accompanied the transition from the feudal world order to the early Modern Period (pre-Westphalian Europe). This was a period of ‘declining empires, retreating feudal lords and an emerging class of traders and capitalist entrepreneurs.’ At that time, the Holy Roman Catholic Church represented God’s rule on earth (a divine element in that world order) and had established itself as the ‘divinely-delegated’ hegemonic power, an influential power that became an instrument of European governance. City-states were the main political units, although they were mostly controlled by monarchs. However, by the early 1600s there were already signs of tremendous turbulence in this feudal world order. One indication of this was the first pan-European (religious) war, which severely weakened the influence of the Church and resulted in the hegemon being replaced by about 300 sovereign princes. The disorder of the religious wars facilitated the disintegration of the old order which was slowly replaced by a new pan-European secular order in 1648 based on the equal sovereignty of newly created states.”

The message is that modern states succeeded empires replacing a centralized Christian empire with a diversity of different secular states. The new world order was consecrated by the Treaty of Westphalia. Though there is much truth in this historical schema, it errs by fundamental omissions. First, the resurrection of the concept of the nation as the bearer of collective values precedes the emergence of nation-states. Second, that emergence is facilitated by the resurrection of an Old Testament idea of nations at peace with one another; there is a utopian aspiration, as distinct from an apocalyptic vision, as well as an historical precedent on which these moderns relied. The aspiration included the Achilles heal of the nation-state system — whenever states and statesmen see themselves as the bearers and protectors of ALL fellow nationals in total disregard of accepted borders and the rights of states. Third, the states were not secular but Protestant, and the Protestant nation-states were at war with Catholic empires.

The Catholics were often viewed as fifth columnists, threats living within the bosom of the nation, with justification in some cases. But also because of provocation! After all, it was the true Catholic believer, Lord Robert (Robin) Catesby, in 1604 who organized Guy Fawkes, the explosives expert, and his aristocratic friends – Thomas Wintow, John Wright, Thomas Percy and Robert Keyes – to blow up James I, his wife and heir as well as all his officials in 1605 when the House of Lords reconvened in the second year after the Scottish King, James VI, son of the Catholic Mary Queen of Scots, succeeded Elizabeth to the throne of England. James was perceived as failing to fulfill his ostensible promise to permit freedom of worship for the Catholics. Of course, there had been provocations. Sir Robert Cecil had persecuted Catholics mercilessly. Under a 1586 statute, priests had to live and scurry about England in secrecy. When caught, they were most often killed. Protestant church attendance was compulsory.

Robin Catesby was a devout Catholic and a recusant, a refusenik of the time who refused to attend a Protestant church even nominally. His sister hid the Jesuit Priest, Father Henry Garnett, who was believed to be trying to carry out the 1570 Papal Bull of Pius Quintet that Catholics were not bound by any oath of fealty to their Protestant King or Queen. In 1604, freed from the restraining influence of the King, the exposure and capture of the Bye Plot conspirators who planned to kidnap the King brought the wrath of the Sir Robert Cecil onto the backs of the Catholics, a wrath that encouraged the rebels even though Farther Garnet had advised against the plot in prescient fear of an even greater persecution of Catholics.

The 1605 Gunpowder plot was the 9/11 cataclysm of its day. But the centre of the intellectual and ideological war between Protestant nation-states and the Holy Roman Empire was Holland, not England, where thinkers such as Hugo Grotius provided the ideological rational for the new order, an order highly influenced by a belief in resurrecting a new version of the old biblical order embraced by the rule of constitutional law domestically and international law more globally.

The Hebrew bible is clearly based on a politics of peoples. God promises to make the descendents a great nation (Genesis 12:2) with numerous descendents. (Genesis 15:4; 17:2; 22:17). This collection of books is premised on ethno-nationalism and populated with goyim, nations. The central concern is with the politics of the nation, the proper polis for the nation (Daniel Elezar), and securing a nation’s freedom within God’s realm on earth, not God’s realm in heaven. (Leo Strauss) The nation is premised on the principle of descent as central though not exclusive (as the Book of Ruth clearly indicates), and governance over a particular territory both to protect the nation and to pass laws that apply equally both to members of the nation and the gerim or strangers who live amongst any nation.

The children of Israel are not native to the soil for, like the Arameans who came from Kir and the Philistines who came from Caphtor, the Israelites became a nation when they came up from Egypt to settle in the land of Israel. The implication is that many if not most nations are forged from their process of movement and settlement. Further, in the case of the Hebrews, as with many other peoples – the Armenians, the Kurds, the Circassians – their unity continues even when uprooted from what became their ancestral territory. During that exile, the collective experience includes a degree of self-rule even when the nation lived within the bosom of a state in which the members of the minority nation were not equal subjects.

Thus, there are laws and practices governing the nation which lack the coercive force of the state, but which regulate the life of a people and all of its members who voluntarily adhere to that law – Torah and dat. State laws apply to those norms and rules for the protection of the nation or the people. State laws also provide equal protection of the welfare of all citizens of the realm who live on its territory, provided that they are not threats, whatever the source of their national affiliation. Finally, state laws apply to inter-national relations under applicable universal norms. The problem of Putin is not that states do not have a responsibility to protect fellow nationals who live outside the confines of the state, but how and when that obligation to protection is exercised. Are fellow nationals really in dire fear or is the creation of that fear a construct and excuse for intervention? If they are in fear, have all other methods of protection been exhausted or has the state dispensed with established international procedures for pursuing protection?

At the foundations of modernity in the seventeenth century, Holland emerges as the modern New Israel, the Republica Hebraeorum at a time when Hebrew studies and biblical research flourished at Leiden University and Jews arrived in large numbers in the United Provinces, mostly in flight from persecution and discrimination elsewhere – such as Catholic Spain where even the Conversos were being persecuted as racism rather than religion revealed itself to be at the heart of the persecution. Though these new political ideals incorporate in their political theoretical concerns the preoccupation with the ideal form of government as well as concerns with power and justice and the relationship between those who rule and those governed by the laws of the state largely inherited from the Greeks, it is from Jewish thinkers who lived in exile that Holland inherited its tradition for developing theory and rules of law applicable to the Dutch nation. (Cf. E.H. Krossman (2000) Political Thought in the Dutch Republic)

Although the material benefits of providing hospitality to the great Jewish merchants of the time, who were enjoying a Golden Age, played a part, the influence of traditional Jewish political thought on the political foundations of the post-Westphalian order was profound. The Jewish polis was not viewed as a source for universal truths, but as a model with lessons to be learned. This not just an exercise in speculation, but an actual pattern of political concern by a nation that was so critical in providing the foundations of modernity, for it was William of Orange in 1688 coming from the Netherlands who gave Britain its character as a modern nation-state.

However, the Dutch tradition differed from that of the Hebrew nation, for Holland arose out of a tradition in which the separation of Church and State, the separation from the laws that are God’s and those that are Caesar’s, was a central theme. The tradition of the king’s two bodies, and the dominion of the Church over spiritual matters versus the State over earthly matters, was not part of the Hebraic tradition of political thought. That political tradition of two political realms intersecting in the sovereign also influenced issues of membership, for canonical law had been used to de-nationalize the Jews of Spain and drive them out of the polity in the Spanish Inquisition. Thus, the Dutch had to intertwine at least three traditions, the tradition of defining the ideal polity in accordance with Greek philosophy, the tradition of defining the rights of the nation and of the excluded stranger in Jewish political thought, and the need to separate Church and state.

Hugo Grotius adapted the conceptions of equality and justice in his 1600 volume, De Republica Emendanda, and in his 1614 recommendations to the United Provinces on the treatment of foreigners seeking safety in Holland that had such an influence on the 1617 book of his friend, Petrus Cunaeus, who was less interested in emulating the ancient Hebrew Kingdom’s constitutional provisions, than its ethical ones, namely its conceptions of equity and justice.

The three different sections of De Republica Emendanda deal with constitutional, legislative and leadership issues in the first 27 paragraphs comparing the Hebrew and Dutch constitutions, the analysis of disaggregated sovereignty in the Hebrew polity divided among the different levels of structure and individuals assigned authority over those different levels, including the supreme representation of sovereignty, and, thirdly, a historical sketch of the history of the Dutch Republic thus far and its shortcomings. Those shortcomings boiled down to loss of a true substantive sense of justice that was the basis for unity, and the substitution of prejudice and superstition and the desire to impose an inflexible and dogmatic orthodoxy of belief and practice imposed by arrogant and ignorant clergy (then on such issues as predestination and the Lord’s grace) to replace true piety and respect. De Republica Emendanda explicitly refers to the ancient Hebrew Commonwealth as a prototype of those same weaknesses that produced a lack of unity because of superstition rather than a respect for inviolable laws, and that led to futile and meaningless debates over sacred ritual and places of worship rather than freedom, equality, justice and power.

This disunity led to the downfall of the ancient Israelite state. As a consequence, the failures of the ancient Israeli effort at state-building could be repeated bringing on interventions by wayward princes or emperors, the promotion of idolatry, the growth of internal strife from within, and the culminating calamity of all, civil war, and tyranny from without. In the face of such divisions and displacements, fears are projected onto outsiders as distractions from substantive failures and disagreements within. Those exercises in displacement were used to cover up rather than deal with an absence of unity so critical for the administration of a successful polis. The issues were self rule in accordance with inherited privileges and local interests that guaranteed local inalienable rights, and the limitation of powers of external sovereigns, including inhibiting the extension of those powers to exclude providing hospitality and safety to people expelled by that foreign sovereign.

In the debates over whether Jews could be granted freedom of religious belief and practice when not only Roman Catholics and specific other Protestant denominations lacked such rights, and in the face of public scandals in which one Jewish male was caught having intercourse with a Christian girl and another, a pharmacist was caught committing adultery with a Christian maid, Grotius, though not clearly and distinctly, but ambiguously and half-heartedly, commended the intake of Jews. Immigration of Hebrews was to be allowed because of an affinity between Calvinist Holland and the history and experience of Jews, and between their ancient commonwealth and its constitution and their reference to God as the supreme commander, so that humans are committed, not to following the whims of the people, but to follow divine commandments for hospitality which are couched as universal obligations of duty rather than as the universal rights of those claiming the beneficence of the host state. No quota was to be placed on immigration. At the same time, the freedom of Jews to publish had to be restricted lest they try to proselytize and seduce Christian girls. Jews could not serve in public office and young Christian girls could not work as maids in Jewish households. (These were Grotian pragmatic concessions to mob fear.) But no restrictions were to be placed on Jewish rights to trade, subject to Christian imposed closing times, or to where they could live. They were neither prevented from wearing special attire (versus the 2013 proposed Quebec Charter of Values) nor was the wearing of special attire imposed upon them. The Jewish national sense of freedom and equality, justice and beneficence provided the standard for the Dutch nation as it sought self-rule.

Grotius failed to save Holland from its religious zealots and political fanatics, and, in 1618, was forced to flee to Paris and live in exile for the rest of his life when the greatest rupture first appeared in the process of creating a modern Dutch state. However, he left a legacy of intellectual wariness of those who promoted ultimate apocalyptic visions. He also bequeathed a respect for the political values of the ancient Hebrew nation and its respect for the rule of law. Nationality had to be married to a republican order of law and self-government.

This was what Putin does not understand. Nationality does NOT trump a republican order but works in concert with it. Putin seems to be driven more and more by a Milosevic utopian vision of a union of a greater Russia and a willingness to flirt with the apocalypse. The principle of the rule of law both within states and in the international order among states is a fundamental value worth fighting for. But any fight involving a nuclear power in contemporary times poses an existential risk, not simply to the modern world order, but to any order whatsoever.

The threat of nationalism to a state political order can come from without or from xenophobic nationalists from within who may try to seize control of the levers of the state. Further, expansionist nationalism and xenophobic nationalism, while ostensibly opposed, easily become partners in dismantling the legal order of the state system. That is why, while opposing expansionist nationalism, it is also necessary to be wary of internal xenophobic nationalists who may be the keenest opponents of the expansionist variety, for both pay little regard to the nature of the state, the importance of a civil order, the crucial role of state institutions and the rule of law as protectors of minorities domestically and internationally.

The nation-state system as it has developed must be protected and defended whether the threat comes from Western neo-liberal imperialists or Eastern pan-nationalist or pan-religious zealots.