Author: Kenneth Anderson

Sir John Keegan, Ave Atque Vale

For various family reasons, I have been mostly off-line during the last few months, but I could not let slip by the sad news of the passing of Sir John Keegan, the renowned military historian and author of many works that certainly shaped my thinking and, I would guess, that of many readers.  The Telegraph, for which he served as...

The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player

OJ's esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it.  He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration.  The short answer is that if those are your objections, then you really ought to stay out of the process, which is certainly my view.  (We should add that this has been a fairly standard procedure for the US in certain kinds of treaty negotiations where it is clear that Constitutional standards are implicated.)  But this raises some general issues regarding the nature of consensus negotiations, which I take up in this post, using the arms treaty negotiations as a backdrop and drawing on Chapter 2 of my new book, Living With the UN. The Bush administration, as Duncan's earlier post observed, opposed the treaty negotiation process and instead favored strengthening national export regimes.  I thought it was a better way to deal with the issues of arms trade as such; I always thought it a mistake for the Obama administration in 2009 to agree to engage in the process at all.  One reason the Obama administration decided to join treaty negotiations, however, is owed to the early Obama administration's overall desire to engage multilaterally, especially through the UN and international organizations. It's part of this administration's general patten of multilateral engagement - with the Human Rights Council, most controversially, but lots of other exercises in "values" processes at the UN as well.  I'm not alone in detecting a tension inside the (first two years anyway) Obama administration between its liberal internationalists, who took multilateral engagement seriously as its own value, on the one hand, and what I've sometimes called its "New Liberal Realists," on the other. The liberal internationalists of the administration's first two years or so thought the "values" exercises meant something for their own sake and so should be undertaken.  The New Liberal Realists, by contrast, seemed to have taken the view that if the US could gain points by engaging in values processes, fine, because it didn't finally matter.  Being mere ideological exercises in words, they didn't actually mean anything in tough realist terms.  Talk is cheap and you can always walk away or come up with some covering interpretation.  In a (yes, provocatively titled) chapter in my book, "Disengage and Obstruct," however, I argue that these exercises in supposedly cost-free multilateral engagement around values issues are rarely cost-free for a hegemonic player.  Talk might be cheap but it's not without a price, because it's an accumulating, even if imperfect and weak, proxy for whether the hegemon means other things it says. The New Liberal Realist claim amounts to saying that no one takes the "values" talk seriously or as a proxy for "realist" matters of security, hard core economic issues, etc.  I would respond that this misunderstands the peculiar nature of hegemony, and the way in which it transcends realism by using "values" issues to transform raw power into authority and finally hegemonic legitimacy. (Beyond that, I won't try to define hegemony here.)  Realists, we can say in passing, are often not conceptually equipped to understand legitimacy save as on a narrow, transactional, marginal basis - blinders which makes it hard to understand the persistence of hegemony, which depends upon a particular relationship between interests and values, power and authority, and finally legitimacy.  

US Lawmakers Send Letter to Obama Administration Warning on Arms Treaty Negotiations

The Hill (a DC newspaper covering US Congress and government) reports that some 130 US Congresspeople have sent a letter to the Obama administration objecting to various aspects of the just-started UN Arms Treaty negotiations in New York and warning the administration against what the lawmakers regard as infringements on US citizen gun rights or US sovereignty.  I thought I...

The UN’s Alphabet Soup of Entities

(Amended:  Kevin suggests in the comments that this is a cheap shot at the UN, and after sleeping on it, I agree.  I've amended it, but in case anyone wants to see what Kevin is objecting to - and I agree he's right that it's unnecessary sarcasm - the original is below the fold.  I've amended the title as well.) Economist blogger Emma Bond quotes an email (including the above post title) mentioning a UN entity with the following title:

Open-ended Ad Hoc Working Group of the General Assembly on the Integrated and Coordinated Implementation of and Follow-up to the Major United Nations Conferences and Summits in the Economic and Social Fields

(H/T Hayes Brown and his Water's Edge blog.)  The email is somewhat sarcastic about the oft-remarked alphabet soup of UN agencies.  But it points to another feature of the UN, often remarked upon by managerial experts at the UN itself, viz., that though there are many mechanisms for creating agencies and entities, it has far fewer mechanisms for eliminating them once created, whether because the original purpose has gone away, the functions performed by one actor duplicate those of another or have been absorbed, or because whether the function is useful or not, it should be eliminated to free up resources for other things.  While this is generally true of national governments, particularly large ones, the highly diffuse nature of the UN and its institutions, along with many vested interests - some national and some internal to the UN itself - makes the problem more intractable. It is not an irrelevant question at the moment, however, given the increasing pressures on the UN budget (rather budgets, given that peacekeeping, in particular, is larger than the mandated UN budget) with developed world governments in difficult times.  Budget negotiations over the general budget were strained this cycle, as even the Europeans, for obvious reasons, pressed to hold down budgets - but at the same time budgets have been creeping up.  Budget negotiations over the peacekeeping budget were just wrapped up a few days ago, and likewise showed the strain of increased pressure to do more peacekeeping - particularly given that it is widely perceived as a useful and fairly effective activity, despite the problems with procurement corruption scandals, sexual abuses by peacekeeping forces, and other questions of operations management - at a time when developed countries are under fiscal pressures. One suggestion I make in my book, Living with the UN - one that is also frequently heard among UN efficiency experts inside the organization or hired to consult to it - is that the UN simply ratchet down the number of conferences, international meetings, roadshow events taking place in places other than the UN's existing centers.  They are expensive and it is unclear what the long run value is as compared to simply undertaking the activity in existing venues, and often using existing processes.  I suggest that the US adopt this as policy and simply announce that it is going for a moratorium on international conferences in favor of undertaking the actual negotiations giving rise to the conference in the venues and processes already existing.  Pretty obviously, this is not a suggestion that is going anywhere, but it points to the difficulties in forcing highly diffuse UN agencies to have to make internal tradeoffs over scarce internal resources.

Book Discussion “Outsourcing War and Peace”: The Efficient Regulation of Private Security Contractors

[This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.] The dean-emeritus of US government law of war lawyers, Hays Parks, spoke in passing a year ago about private security contractors and the law of war at a conference in honor of Michael Walzer.  Parks noted that for better or worse there was no going back to a world in which even the use of force, let alone other matters, was confined to formal government military forces - that bridge had been crossed with such things as State Department security and much else.  But he expressed concern with the way in which it had come about, with insufficient attention to the issues of accountability.  And also regret, from the standpoint of the laws of war, that certain of these functions had ever been allowed to be privatized. Because, as Parks says, the bridge has been crossed, I'm fundamentally in agreement with the concerns that Laura Dickinson's splendid book raises about accountability.  Point being that one can be a government laws of war lawyer and share these concerns, as Parks does; and equally share concerns for establishing mechanisms that lie within the realistic possibilities of legal policy for addressing the accountability concerns.  Contractual mechanisms are a very important category of that, and the questions raised below are less about principle than cautions about the limits of contractual mechanisms.  Like Chris and several other OJers, my teaching day-job is in business, finance, contracts, and law and economics, and I also draw here on experience as the board chair and general counsel for several NGOs engaged in much cross border development finance and related contracting - microcredit and all that.  So let me run through a standard set of law and economics issues that might arise in these attempts to regulate via contract: 1. Might contract mechanisms under-deter or over-deter the use of private contractors for particular functions (or under some circumstances, might they do both)?  One of the things I most like about Dickinson's nuanced approach to the possibilities and limits of contracting mechanisms is the awareness that contract enforcement in our civil court system is not well suited to the kinds of situations that would most concern us in the situation of private contractors, for example, using force in some foreign situation of high insecurity if not straight up conflict.  This is so, I think, for contract claims as well as tort claims.  For example, the possibility of wrongful death of a foreign national in some not-exactly-quiet-not-quite-war-zone by a security contractor is not very well suited to the social setting in which the US civil litigation system of wrongful death has meaning - which is a settled domestic legal system in which the participants all share certain expectations about what is okay and not okay in the circumstances.  Moreover, much of that settled, legitimate, domestic system has to do with situations of risk in which we as a society accept that there are crucial social benefits that lead us to accept risks to life and limb, even ones that implicate wrongfulness. I am skeptical that those shared social assumptions, which deeply inform and legitimate our domestic civil legal system, can be applied well in all these other situations.  I doubt that the adjudicators think they can do so, either, even if tasked to do so.  The tendency is either to hold contractors to a stricter standard than one might think is efficient to the ends - ends, however, which in quasi-war zones are themselves contested - for which some modicum of force is justified.  In that case, contractors will be over-deterred once they understand the costs they must internalize.  Or else the adjudicatory system, concerned that it is being asked to apply purely domestic standards to highly contingent and fundamentally different conditions of conflict, will excuse too much, whether overtly or indirectly, for fear of penalizing unfairly something where command and control, and ultimately accountability, ought to have rested with the government agency, not the contractor.

Law and Ethics for Robot Soldiers

Lethal autonomous weapons can be approached from two directions.  One is to look from the front-end - starting from where technology stands today, forward across the evolution of the technology, but focused on the incremental changes as and how they occur, and especially how they are occurring now.  The other is to imagine the end-state - the necessarily speculative and sometimes pure sci-fi "robot soldiers" of this post's title - and look backwards to the present.  Starting with the hypothetical technological end-point - a genuinely "autonomous," decision-making robot weapon, rather than merely a highly "automated" one - the basic regulatory issue is, what tests of law and ethics would an autonomous weapon have to pass in order to be a lawful system, starting with the fundamental law of war principles, distinction and proportionality?  What would such a weapon be and how would it have to operate to satisfy those tests? This is an important conceptual exercise as technological innovators imagine and work toward autonomy in many different robotic applications, in which weapons technology is only one line of inquiry.  Imagining the technological end-point as law and ethics means, more or less,  hypothesizing what we might call the "ethical Turing Test" for a robot soldier:  What must it be able to do, and how must it be able to behave, in order to make it indistinguishable for its morally ideal human counterpart?  The idealized conceptualization of the ethically defensible autonomous weapon forces us to ask questions today about fundamental issues - who or what is accountable, for example, or how does one turn proportionality judgments into an algorithm?  Might a system in which lethal decisions are made entirely by machine, with no human in the firing loop, violate some fundamental moral principle?  All these and more are important questions.  The problem in starting with them, however, is that the technology driving toward autonomous weapons is proceeding in little tiny steps (and some important critics, their enthusiasm tempered by earlier promises of artificial intelligence that failed, question whether the tiny little steps can ever get to genuine autonomy) - not gigantic ones that immediately implicate these fundamental questions of full autonomy. Indeed, the systems being automated first are frequently not the weapons themselves, but instead other parts of the system.  But they might eventually carry the weapons in train.  Thus, for example, as fighter aircraft become increasingly automated in how they are flown - in order to compete with enemy aircraft also becoming more automated - eventually important parts of the flight functions operate faster than humans can.  In that case, however, it looks irresistible to automate, if not make fully autonomous, the weapons systems, because they have to be integrated with the whole aircraft and all its systems.  We didn't start out intending to automate the weapons - but we wound up there because the weapons are part of a whole aircraft system. These facts about how technology of automation is evolving are important for questions of regulating and assessing the legality of new weapons systems.  In effect, they shift the focus away from imagining the fully autonomous robot soldier and the legal and ethical tests it would have to meet to be lawful - back to the front end, the margin of evolving technology today.  The bit-by-bit evolution of the technology urges a gradualist approach to regulation; incremental advances in automation of systems that have implications for weapons need to be considered from a regulatory standpoint that is itself gradualist and able to adapt to incremental innovation.  So, Matthew Waxman and I are pleased to announce a new short paper on this topic, Law and Ethics for Robot Soldiers, which takes as its premise the need to think incrementally about the regulation of evolving automation. The essay's takeaway on regulation is ultimately a modest one - a quite traditional (at least from the US government's long-term perspective) approach to weapons regulation.  Grand treaties seem to us unlikely to be suitable to incremental technological change, particularly as they might seek to imagine a technological end-state that might come about as anticipated, but might develop in some quite unexpected way.  Sweeping and categorical pronouncements can re-state fundamental principles of the laws of war, but they are unlikely to be very useful in addressing the highly specific and contingent facts of particular systems undergoing automation. We urge, instead, a gradually evolving pattern of practices of the states developing such systems and, as part of the process of  legal review of weapons systems, development through reasoned articulation of how and why highly particular, technically detailed weapons systems meet fundamental legal standards.  In effect, this proposes that states develop bodies of evolving state practice - sometimes agreeing with other states and their practices, but likely other times disagreeing.  This seems to us the most suitable means for developing legal standards for the long term to address evolving weapons technology.  Abstract below the fold.

Tiembla, Che!

I don't actually mean to express an editorial view here - my views on the role of social media, I've decided, are too mixed up for me to write a coherent post.  But I did think this was funny.  Thanks to my friend and colleague Juan Mendez and his ...

Links List at Lawfare of US General Counsel Speeches on Targeted Killing, Hypothetical Drone Programs, and Related National Security Law

In case anyone finds it useful, over at Lawfare I have posted up links all in one place to the leading speeches by the US government’s senior national security lawyers on targeted killing, hypothetical drone programs, covert action, and related national security law issues - Harold Koh (DOS), Jeh Johnson (DOD), Eric Holder (DOJ), Stephen Preston (CIA) – and one by non-lawyer but...

Sudan-South Sudan War, and the Limits of the Coase Theorem in International Law

It’s always fun to find new ways to apply the Coase Theorem, particularly in situations of international relations and law.  So, we’ve seen it raised as a way of talking about bribing Libyan generals not to fight, how to avoid war over conflicting economic claims in the South China Sea, and lots of other situations.  There’s something useful about seeing...

Daniel Klaidman Comments on CIA General Counsel Speech

Daniel Klaidman, the journalist whose June 2012 book "Kill or Capture: The War on Terror and the Soul of the Obama Presidency" looks to be a must-read, has sent in a guest post to Lawfare discussing how the Stephen Preston speech came about and a bit of the inside maneuvering around the succession of speeches by Eric Holder, Harold Koh,...

Inter-American Court of Human Rights Recognizes Discrimination on Basis of Sexual Orientation

The Inter-American Court of Human Rights for the first time has recognized unlawful discrimination on the basis of sexual orientation, in a decision released two weeks ago, Atala v. Chile (here is the decision, in Spanish).  Congratulations to Macarena Saez, a Chilean lawyer who teaches at my school (Washington College of Law, American University), for leading a team of public...