Obligation To Protect

March 14 , 1993 Serbrenica, Republic of Bosnia

“I deliberately came here, i have now decided to stay here in Serbrenica. You are now under the protection of the UN forces.” declared General Morillon of UN peace force in his thick French excent to a huge crowd gathered in front of 6  floor building. The Crowd cheered and applauded ; most cried with happiness.

Minutes later ,

Reporter, “Sir, will it work?”

General Morillon replied back, “It will, i will make it work.”

Reporter wrote, “Infront of UN armour vehicle with 6 men; 5 in arms and 1 un armed, General Morillon took salute from his men. One of the soldier hoisted UN flag. Somewhere in these mountains, Serbian commanders might be seeing this through their binocular, reporting back to their infuriated leader Mladic.”

UN , for all these years had played a fairly neutral role and had never took side in the conflict. Before Morillon's announcement it was still doing the same. But unknowingly UN General has taken side, the side to protect the unprotected from the brutality of the invading army. He thought , his action was in response to the humanitarian crisis that was unfolding in front of his eyes. But little did he know that he was establishing a new concept with respect to intervention and national sovereignty.

Its said that the meaning of Intervention and Sovereignty were know to every kind of humans , from Cro-magnon to the modern man, but in different forms. If Aristotle would have taught now, he would have said the same things that modern scholar says. However there was a turn during medieval period , Rules and regulations regarding these 2 were structured and it came to be known as “Treaty of Westphalia”. Nation States have in past fought wars as response to the interpretations of these 2 words ie Intervention and Sovereignty. 

Political legitimacy is one of the supporting concept that is linked with Intervention and sovereignty. Political legitimacy is double edge sword; a sword that cuts both ruling class and the ruled one. How ?...Ask Bush administration!!!! Bush Administration would have said "If its used against ruling, it leads to regime change and If its against ruled ,it leads to state oppression". Problem of legitimacy come into play whenever the state is weak; ie institution strength is low and Rule of law is under question. Effective governance in such a territory is nil. In Hobbesian term its in "state of nature". In this globalised world, there is disincentive, in allowing a state to be in “State of Nature”. Every country acknowledges the fact that intervention is necessary in "State of Nature". Woodrow Wilson was one of the first to advocate internationalism as base of intervention. League of Nation was and UN is the product of this thinking. However when and why to intervene has been the debate which has been going on for a century now.

In post WW2 world, 1 st successful intervention with international base was in Korean war, but this didn't continue due to cold war polarisation. Next success came only during 1st Gulf war ie when USSR was at its death bed. It was during cold war that the question of "why" ? -to expand: why to intervene- was answered; a theory of “Right to Intervene” was discovered. However during the cold war both blocks used “Right to Intervene” to suit their interests. Post cold war(1992) the world has changed; unilateralism under US policemen-ship has been the intervening force. Somalia, Cambodia, Bosnia, Kosovo, East Timor, Afghanistan, Iraq are some of post cold war intervention cases. Right to Intervene or “R2P(Right to protect)” has been used in all cases. However i see a change in the tonality of the “why” question . Some have noticed this but most are ignoring it. My effort here to answer "Whats the changed tone? " and Can intervention be legitimised in other way?

Below argument is for Answer "yes". I would like to call it “Obligation To Protect”, In IR(International Relations) , scholars use “Right to protect” and “Obligation to protect” as one and the same. I would like to make distinction between the 2. Classic case of “Obligation to Protect” is what General Morillon did in 1993 in Serbrenica . 21 st century has seen 2 wars in Asia; Afghan war and Iraq war. I would like to examine tonality of these 2 war. Tonality of “Why” in Afghanistan war was different from that of Iraq war. We need to ask why did the world support the war in Afghanistan but hesitated and even opposed to support the war in Iraq .How 2 wars are different.

Afghan war :  

• Afghan war was a war for greater stability of the region. 
• Afghan war emphasized obligation that world has towards the people of the region and the world, and also to protect world against future attacks from the terror state.  
• Its is also the case of super state having obligation to intervene which i would refer as “Obligation To Protect”.

Iraq war:

• The War was to change the regime and to prevent WMD(Weapons of Mass Destruction) from falling into hands of terrorist.
• Case presented was to prevent proliferation of WMD.  
• Iraq case is classic case of “Right to protect”. Iraq war highlighted the right of a country to intervene.  

There is thin line that differentiates both. This differentiation according to me , is found in the concept “violation of sovereignty”. Lets question our self can a nation's sovereignty be violated?if yes, To what extent?  under what condition? What are grounds for it? Are they legitimate? Who provides that legitimacy?

Sovereignty and Its Violation

Lets have brief answers for these. Internationalism is anti thesis to National Sovereignty. Sovereignty is not absolute. We are part of internationalism, being part is the indication that we are moving towards dismantling concept of absolute National Sovereignty. Historically its know that Nation state which feeds on the definition of territorial boundary is part of imaginative fallacy. Sovereignty related to it, has always been open to interpretation ;most of time interpretation has been partisan based on nationalistic agenda. This Imaginative fallacy of nation state have been violated by other nation or group of nation or international coalitions . This type of interpretation and violation has resulted in WW1 and WW2 . Internationalism was and is the consented answer to the question of extent of violation of Sovereignty of  the Nation state .Should it be unregulated violation or should it be a structured and institutionalised violation . Internationalism can as solution to stop future wars . UN and its organisations, ICC(International Criminal Court), INGOs (International NGOs) etc are instruments of violation. The soft word to this concept is International deliberation. It was solution to bring all Nation States from The "state of Nature"  to contact , but in a slowly and incremental manner by establishing a international social contract(Hobbsian).To which all Nation state will be bound. IMF(International Monetary Fund), WTO(World Trade Organisation), World Bank etc are institution of this International contract. International social contract has deliberators, enforcers, legislators etc. International social contract has given sense of stability in otherwise "state of nature", which persisted before WW2(concept; war with all; peace with non). This sense of stability has been disturbed by various factors; cold war being the main. There were other organisation and grouping that went with Internationalism. NAM(Non-Aligned Movement) being the one.

Institutions that got established to defined the extent of intervention :  WTO in trade, WHO in health crisis, UN peace keeping force in war. Its just like federal structure intervening in the state's matter, when state fails to address the issue. This extent is on rise; states all over the world are sinking , which is good sign for Federalist and internationalist like us. Initially UN interfered in Inter-national matters and not in intra-national matter. However Congo (DRC(Democratic Republic of Congo) UNSC resolution 1279 and 1291) case has changed the meaning. UN started interfering in the civil wars as peace keepers; then it started engaging in battles; this metamorphism is sign of moving from “Right to Protect” to “Obligation To protect”. UN used to maintain territorial integrity of Nation State however post cold war there is metamorphism in that also. Establishment of Kosovo, South Sudan and East Timor are result of this changed policy. Pre Cold-War UN mission were to strengthen the institutions of Nation State but with establishment of UNMIT in East Timor, then UNMIK in Kosovo,UNMIS in South Sudan; Its beyond doubt that UN has found way to create new basic structure of a Nation State and their institutions. Its a revolutionary change in the mandate of UN; ie from its agenda of improvement to agenda of creation. This will no doubt that this revolutionary change is the biggest challenge for those who supports the idea of Absolute sovereign Nation State. However for Internationalist, its 1 step nearer to world stability.

Legitimacy: But is it legitimate and who provides this legitimacy?

Any action whether its taken by group of Nation States or UN, needs to have legitimacy especially when it is related to violation of sovereignty of Nation State. Grounds of legitimacy must be put forward before intervention. This is a highly contested area. Should we interfere in civil war or should we interfere in sub national conflicts like Darfur, Chechanya or Kashmir, or in western sahara. Or should we ask the same question in different way , ie  , why UN doesn’t interfere in Kashmir or Chechanya or Quebeq, but , why did it enter unilaterally in Kosovo, Timor and Darfur area of Sudan.

Each case is complex one, but according to Huntington line of thought when Nation State losses its legitimacy among the people of region than UN can and should intervene;

There are certain cases where there is clear case to intervene . Case of Afghanistan is case of regional security as is Islamic State in Iraq and Syria. These are best case of “Obligation to Intervene or protect(O2P)”. Why ? Because States like Somalia , Afghanistan and ISIS are anti thesis to the established system . These rouge state are threat to regional stability. These create scores of problem both regional and global. Refugee problem, cross border terrorism and organised crime, indiscriminate killing, drugs trade, human right violation,illegal trade, blood minerals, migration stress, etc are some of problems these states produces. 


Let us take recent example :

• Syrian civil war has displaced 1.5 million refugees in the region; making it hotbed for various criminal activities and internal hub for terrorism. Al Jazeera in 2012-13 did report the growth of these crimes and growth of terrorism under shadow of civil war. Unintended consequence of not intervening earlier gave birth of IS in 2014 ,Now IS is the greatest challenge to the world .
  
• Absence of state in Somalia has lead to dangerous growth of Piracy at sea which is a threat to shipping lane of the world. Its also terror exporting base in the region. Kenya, Ethopia are effected by this.
  
• Afghanistan's failure is disincentive to the region. Its terror base of the region; exporting terror to India, China and other regional countries.
  
• Case can also be made if a rouge state(North Korea) has proven weapons of mass destruction and if there is high probability that it will use it on the neighbouring state unprovoked.
  

To generalise ; UN can use “Obligation to Intervene or protect” in case where:

• The Nation becomes state less and plunge into civil war with no effective government creating huge humanitarian crisis.
• State become a terror hub and active exporter of terrorism.
• State having WMD and their is high probability that it uses.

Now let us answer the question that has deluded many IR theorist. Ie Can a nation state other than UN, intervene? ... I would answer it as “Yes”. There are lot of instances where concept of intervention is used. Example: India's intervention in Bangladesh independence war. Its one of the first cases of “Obligation To Intervene or protect(O2P)”. There was less incentive for India in Bangladesh's War of Independence but we intervened. Intervention was due to the migration pressure , which civil war has created along India's border. India asked world to intervene but  world failed to intervene and stop humanitarian crisis that was unfolding in Bangladesh. Its know fact that India had been preparing for Intervention in worst case scenario. As worst case approached it intervened, while world called it as adventurism. Question arises, what did we gain? Was it at right time? This debate has always been shadowed by Nationalist literature in IR field. I will not address that, but i believe that Bangladesh saved a lot, it saved itself from becoming another Rawanda. Intervention of US in 1 st Gulf war can alsoo be counted in this. Nation States have previously intervened in other state due to security region ie to bring regional stability, which can be brought under umbrella of "Obligation To Protect". However idea of intervention has lead to arbitrary use. 2003's , US coalition war on Iraq is one of the numerous cases. Reason given by US and Its coalition partners for intervention was WMD and their proliferation ;which were never found and never proved. This falsified intervention is a classic case of “right to intervene” . This case show thin line that exist between “Right to intervene ” and “Obligation to intervene” . Not many nation supported the campaign in Iraq; hence legitimacy was low and WMD were never found. Tonality of intervention was much towards right of some countries led by US to fight against terrorism and fight against state sponsoring terrorism . However if US coalition was able to prove presence of WMD and intention of Iraq State to use it on the neighbouring countries beyond any doubt. And if it had mandate of UNSC or UN general assembly then i could have put this case as metamorphosed case of “right to Intervene” to “Obligation to Intervene”.

Old Intervention: Right to Self Determination

In cases like Darfur, kosovo, East timor etc , UN has in past used “Right to Self Determination” to intervene. According to UN's “Right to Self Determination”  self determination is inalienable right of community and hence UN is bound to help community to achieve it ,when called upon. UN rarely used this during sub-national conflict during cold war period; however post cold war, it has been used in kosovo, East Timor ,South Sudan. Every nation in the world is the entity of self preservation. No nation want it to be divided; however ,very presence in UN is indication that we have agreed on “Right of self determination”. Its other matter that some Nation State gives opportunity for community to exercise this right(England, Canada) and some don’t(Like China, India, Russia, USA). “Right to self determination” can be used only when people of that region loses faith in the Nation State and  states legitimacy in that region is in question. 

 

Problem that exist to date is : how to test this legitimacy? Referendum is the only possible solution so far used. It was used in Timor, Kosova, South Sudan. UN facilitated these referendum. Referendum are used in a sense to represent the "will of the people" on the assumption that it  people of region has right to decide their own faith; a new contract to begin with; It doesn’t give power in the hands of elites of the society who are representative of the society to decide on the behalf of general population. Timor, Kosova, South Sudan ,All  had bloody history of their own and suffered many humanitarian crisis . UN intervened in these humanitarian crisis . Who legitimised it. It came from UNSC resolution. Legitimacy was further strengthened by referendum in which regions opted for independence. Now with UN help, all 3 new nations are coming back to stability;Out of years of underdevelopment and poverty and security nightmares. Usage of “Right to self Determination” by UN in truest sense is another example of metamorphism of “Right to Protect(R2P)” to “Obligation To Protect(O2P)”

“Obligation to Protect” is powerful interventionist concept of internationalism. Legitimacy to this is and has to be provided by UN. There were case in the world such as Rawanda genocide, Serbrenica genocide ; during which world didn’t do any thing resulting in killing of score of people. There are and will be certain cases which requires no legitimacy; only the "will to confront" the terror is required. Presently IS(Islamic State in Iraq and Syria) is one such case where world must not wait to see whether its legitimate to intervene. People of world need security from rouge state and its duty of UN to protect people. Its UN's “Obligation To Protect”.

Dedicated to Francis Fukuyama

Minimal Democracy and Judiciary

Democracy that we have is minimalist democracy, a Jeffersonian democracy or a more latest word;Schumpeter's competitive democracy. Minimalist democracy need weak executive so "system of Veto" are introduced to check its power. Judiciary, legislature, constitution; are, in all check and balance concept,which is designed not to concentrate power in executive. why? because world have seen most charismatic leader turning into despot.

So Jeffersonian democracy was to keep executive less powerful ,but what if its executive is weak below par. This wasn't looked upon. So field is left to either Judiciary or legislature to fill gap as on when required. in 1800s US congress filled the gap. However when congress started to become inefficient infront of charismatic personality , Judiciary stepped in. In Britian it didn't happen , so their, Legislature is power ful. In India we basically designed Neither Jeffersonian nor Schumpeter democracy. our design to check execute had failed in some cases. Executive and Legislature is intertwined. We havent designed constitution to counter despotism. And Golden thumb rule for people like us is that, if executive is left without checked; despot will sure to appear in near future. And executive will always work towards getting more power.

In India, is a assumption that executive is weak. My view is that its getting far more power than what it needs to have. When legislature cant counter it, Judiciary need to move to fill gap.

In judicial philosophy Judicial activism is excepted in 2 cases

1. when executive is too strong and legislature is weak: 1970s

2. When executive is weak below par: 2009 onward. Most people dont see other side of story. Most know case 1 stories.

Various legal luminaries have different ways to see this.Legal Realist, Legal positivist, conventionalist, pragmatist etc have different way to approach this prb. Legal interpretation depends on which philosophy they believe upon  and not only on constitution . Legal intervention is necessary in common law, statutory and constitutional law.

Common law includes contract, however not the policy making.  in common law we have concept called "Destructive burden on Careless". Destructive burden means: fine. Careless is loose word. Careless can be govt and company. Company will  pay fine and what govt needs to pay?

Judiciary always check for and  wait for executive to correct itself(as it has given opportunity for NDA 2 on coal block allocation policy ), if not then it takes up the policy as "Destructive Burden" for government and use pragmatist method of approach and "What good for Society" and form the policy. There is no wrong in it.

Question come whether it is legitimate.?

Yes it is in most case ie in case of Common law, statutory law, constitutional laws. Most modern judge are inclined toward "Dualist Democracy"(ie democracy through legislature and judiciary), where Judiciary is active judiciary rather than passive. Dualist democracy revolves around "Right Fundamentalism". Basic structure of constitution is element of "Right Fundamentalism". This is judiciary's defence against legislature. It came up in Germany after Hitler's Reich. Hitler was democratically elected despot.
Executive and legislator , time and then try to make Judiciary , a commited judiciary. Passing JPC, and Tribunal mentioned are some attempts. Other countries have tried this, US tried this during "New Deal " era. Its not new to world judiciary as whole. Their is always pattern, legal luminaries know this will. and do have devices to stop it.

coming back to question whether its legitimate. While framing laws Judges use following in Judicial activism.

1. Convention

2. Pragmatism

3. coherency

4. Fairness

5.Justice

6. Due process

7. No arbitrary compromise(eg: cancelling all private and private partenered allocation except 4 which were govt) .

 All these summed up in one word called Judicial Integrity with respect to actvism. Laws are not perfect , their exist gaps and gaps has to be filled, how you fill depends on maturity of democracy.

Questions are...

1.Do we need specialized bench dedicated to deal with financial matters?

Yes we might need benches or tribunal but under frame work of basic structure. As complexity increases more distribution of justice structure need to happen(as US has 2 system of judiciary) but free from executive influence and par with High court or below it. its part of common law or statutory law and "Ideal of protected expectation" can be used to give justice.

2.Are social issues being sidelined or neglected by our higher courts, because of such lucrative financial cases?

Justice must not be seen as either lucrative or non; Courts are their to provide justice whether its related to money, power, rights etc. Efficacy of judiciary is measured by Judgement they pass,interpretation and ideology. Ideal judiciary must be in pyramid shape in handling and giving justice. But it doesnt happen so Art 32 is with Supreme court. Basic social issues could and are handled by lower however gap in justice exist hence higher court. Segregation of benches is settled solution. And in distributed and complex economy lower court cant handle financial cases in line with justice . so assumption is that higher court have greater jurisdiction and efficacy to handle power and financial cases.

3.Whether such demarcation would violate the constitution, as felt the SC in below case.

Justice is done according to constitution and also beyond that, where their is gap. Segregation of financial and non financial doesnt violates constitution as constitution doesnt explicitly gives the priority of cases (interpretation based on strict conventionalism)to which we have to deliver; it only give priority to rights; thats according to "Right Fundamentalism " philosophy. if in an hypothetical constitution where its written that quantum of financial injustice is less than that of social injustice than according to that constitution ,if only cases related to financial justice are taken neglecting social justice cases ,than its violation of constitution. More over justice is huge umbrella very hard to down size.