pieces DANIEL THÜRER

An Internal ChallengePartnerships in Fixing Failed States

hc tenn "failed state" has only recently entered into internationaliciiiil jargon to describe the collapse and dissolution of states.These processes have become relatively frequent of late and are

s\inptomndc of the condition of today's community of states andsystem of international law. Examples commonly cited include

DANIEL THÜRER is a professorof international law, European law,public law, and comparative law atthe University of Zurich.

ISuiiKilij; Liberia and Sierra Leone, which have been racked by small-scale conflictsthroughout the 1990s; Bosnia-Herzegovina in the early days of its independence;Rwanda at the time of die massacres and genocide; and, more recendy, Sudan, acountry which has been devastated by direc conflicts. Although the discussion aboutthe failed state phenomenon has only existed since the end of die Cold War, thereare also cases of failed states prior to that period. These cases include the 20-yearconflict in Cambodia, brought to an end hy the Paris Agreement of 1991 ; the civilwar in Lebanon during the 1980s; and various phases in tbe development of theCongo, a country that has been hard to govern since independence was achievedin 1960. The same themes were evident in the chaodc power struggles in Chinaduring the 1930s and can still be traced back all the way to the Thirty Years' Warin seventeenth-century Europe.

This article aims to analyze the phenomenon of failed states in its legal, polid-cal and sociological aspects. It will retrace the different approaches to addressingfailed states and will attempt to show that efforts toward "fixing" failed states havebeen generally met with mixed success. It is argued here that while other states,intemadonal actors, and the Security Council in particular may play an importantrole, sustainable recovery will in the long run only be successful if it originates fromwithin the failed state—and preferably from the grassroots level rather than froman imposing authority at the top.

The Political and Legal PhenomenonThe term "failed state" does not denote a precisely defined situadon, but instead

serves as a broad label for a complex phenomenon. A state is usually considered tohave failed when die power structures providing poHdcal support for law and orderhave collapsed. This process is generally triggered and accompanied by anarchicforms of internal violence. Former Secretary-General of the UN, Boutros BoutrosGhali, described diis situadon as "the collapse of state insdtudons, especially thepolice and judiciary, with resuldng paralysis of governance, a breakdown of law andorder, and general banditry and chaos. Not only are the functions of governmentsuspended, but its assets are destroyed or looted and experienced officials are killedor flee the country."

Hence, three elements characterize a failed state from the political point of view.First is die geographical and territorial aspect: failed states are essentially associatedwith endogenous problems, even diough these may incidentally have cross-borderimpacts. The situadon is one of implosion rather than of explosion of the struc-tures of power and authority, of disintegradon and destructuring of states rather

L R E V I E W • Winter 2008

thiin dismemberment. Second, there is the internal aspectcharacterized by the collapse of political ;md legal systems.I he cinjihasis here is on die complete or near breakdown of

structures guaranteeing law and order, as opposed to the kindof fragmentation of state authority seen in civil wars. Thelinal element is an external one: the absence of capable bod-ies representing the state at the international level. Either noinstitution exists that has the authority to negotiate, represent,;uiil enforce, or if one does, it is wholly unreliable. From theinternational law point of view, a failed state, while retaininglegal capacity, has in all practical purposes lost the abilit\' toexercise it. Moreover, there is no body able to legally commita failed state to a bitidiiig agreement.

The Sociological PerspectiveSociologically, the failed state is characterized by two

phenomena. The first is the collapse of the government'score, which Max Weber rightly described as the "monopolyof power." The police, judiciary, and other bodies serving tomaintain law and order are no longer able to operate. In manycases, they are used for entirely new purposes. For example,the Congolese militias disintegrated into anned gangs of loot-ers, military commanders set up their businesses using annyunits for personal enrichment, and those in power exploitedstate-owned economic resources forprivate benefit. This situation amounts10 a privatization or even criminaliza-tion of the state. The monopoly ofpower is destroyed and society revertsto a primal contiition, which Hobbesposited as "the war of all against all."

The second sociological feature ofA failed state is the brutality and inten-sity of the violence within the country.Fycwitness reports from Liberia spoke()[ the entire population falling into tliegrip of a collective insanity followingthe lireakdown of state institutions.These internal conflicts are character-ized by a highly unpredictable dynamicand by a radicalization of violence. As aresult, the protection of human rights islargely ineffective in failed states.

The Humanitarian PerspectiveSince World War U, human rights

have gradually been incorporated intointernational treaties and customarylaw. At the global and regional levels, awhole host of procedures, mechanisms,and institutions exist tor the protection

of human rights. However, failed states clearly show thatthe protection of human rights is dependent on the properfunctioning of the state. Human rights need to be given leg-islative shape and implemented internally, which necessitatesfunctioning state bodies. As a genera! rule, the mechanismsfor monitoring respect tor human rights, on die internationallevel, are simply of subsidiary nature. They are extensions ofprior state activity. Hence, human rights are asserted primarilyagainst actions by state authorities. Ihus, where the state andthe administrative infrastructure have collapsed, these rightscan öfter peripheral protection at liest. However, a differentbody of law exists for situations \\ ben regular rules are largelysuspended due to extraordinary circumstances. Humanitarianlaw aims to maintain a minimum of protection when war setsaside most other laws.

This branch of law grew out of old laws of war, and iscommon for mankind, inasmuch as every civilization hasestablished niles to rein in tbe cnicldes of war. In modemtimes, it is primarily intended for armed conflicts betweenstates, yet it increasingly deals with internal armed contactsas well. Article 3, common to the four Geneva Conventionsof August 12, 1949, provides a minimal humanitarian stan-dard to be observed by all parties in armed conflicts not ot"iin international character. This provision was elaborated in

Opposite: A woman in front of a ruined church in Mogadishu, Somalia's war-torncapital. Above: UN troops carry the coffins of peacekeepers killed in clashes withSomali militants, circa 1993. Despite UN and US efforts, Somalia remains chaotic.

Photos Courtesy Reuters Winter 2008 • H A R \- A R D INTERNATIONAL REVIEW^ 1431

picking up the pieces FAILED STATES

detail by Protocol 11, additional to the Geneva Conventions in1977, relating to the protection of victims of non-internationalanned conflicts.

A particular advantage of the rules of internationalhumanitarian law applicable to internal armed conflicts istliat unlike domestic human rights law, they call for account-ability by non-state actors, whether they are individuals orgroups. However, the collapse of state authorit\- impedes theimplementation of these humanitarian provisions in practice.I ntematnonal humanitarian law relies heavily on the hierarchi-cal structures ot the state and above all, on die military' orderwith its chain of command. These do not usually exist in die

of force if necessary.Thus, the Seairit^' Council may intervene to restore

internal order as soon as the threshold of a tlireat to peaceunder Article 39 is reached. The consent of the state is notneeded, especially since consent could hardly be granted in theabsence of any effective government. However, if one consid-ers the consent of the state indispensable, intervention can bejustified by inferring it from the higher interest of the peopletlirough die civil law analogy oínegotiorimr gestio, or criminallaw provisions concerning assistance in emergencies.

In recent practice, the Security Council has interpreted itsmandate broadly. In various cases—most notably Cambodia—

THE INTERNATIONAL ORDER, ESPECIALLYINTERNATIONAL LAW, DOES NOT LEAVE

FAILED STATES TO SIHPLY FEND FORTHEMSELVES."

case of anarchic conflicts invoking loosely organized clans orotiier units. WTiere every combatant is his own commander,the traditional mechanisms for the implementation of inter-national humanitarian law are wholly ineffective.

Therefore, it is necessary to explore alternative mecha-nisms to implement humanitarian law. One method embracedby the International Committee of the Red Cross is thetlissemination of infbnnation about basic humanitarian lawprinciples in territories prone to conflict tlirough schools andvia radio and television. But once a state has disintegrated, themost urgent task is to establish effective means useable at theinternal level to re-establish failed states. But today, the re-sponsibility for fixing humanitarian problems in failed states isan international obligation rather than a domestic burden.

Practices of the Security CouncilThe international order, especially international law, does

not leave failed states to simply fend for themselves. On thecontrary-, the collapse of a state anj'where in the world is seenas a matter of internadonal concern. Li practice, internationalorganizations, the UN Security Council above all, have beendie main reactors to failed state situations.

Most importantly, the Council has relied ÍMI ChapterVTI of the UN Charter. The landmark development was theDecemher 3, 1992 Resolution 794 on Somalia, in which tlieSecurity Council held tliat "tlie magnitude oFthe human trag-edy caused by the conflict" was enough to constitute a threatto peace witliin die meaning of Article 39 of the Charter. TheSccurit}'Council has constantly relied on Chapter \Tl of dieCharter in Bosnia-Herzegovina and Rwanda when authoriz-ing states and, in the case of Somalia, the already deployedpeace-keeping units to achieve tlieir objecdves, with die use

the Security Council has taken peace-building acdon in theform of far-reaching civil measures that range from the de-mobilization of anned forces to the reform of governmentaland consdtiitional stiiictures. Like Somalia, Cambodia was aninstance in which the charge of the internadonal comniunit}-to take over complex adniinistradve and polidcal tasks in failedstates was clearly evident.

Finally, it should tobe noted diatthe Security Council hasregularly addressed all relevant pardes in the confîict, thoughw Ithout specifically reminding the non-state players of dieirduty. It would appear that at least in connecdon with the situ-adon of failed states, a door has opened allowing the measuresenvisaged bi Chapter VT of the Charter for inter-state reladonsto be used in the internal affairs of states as well.

Overall, the Security Council has not only permitted theintervening states to apply various enforcement measuresunder a broad mandate, hut has also created a new normadve,insdtudonal, and operadve regime in the context of peace-keeping operadons. This strategy transcends the tradidonalmethod and may be used, at least temporarily, to substitutefor the collapsed system of governance. Thus, following itsown understanding and supported by the approval of thecommunity of states, the Security Council has fundamentallytransformed the role it was originally Intended to play. Havingstarted out as a sort of policeman in the service of internadonalsecurity, the Council now has a subsidiary iiincdon of a supra-nadonal "government and administradon" body.

However, the endeavors of the Council have met withvar>'ing success in die field. XVhiie Bosnia and Haiti have heenpacified, for the dme being, the Congo has yet to achieve amodicum of stability, and the situadons in Somalia and Sudanremain as hopeless as ever. In these two states, msdtudons

44 HARVARD INTERNATIONAL R E VI E \V • Winter 2008

AN INTERNAL CHALLENGE: PARTNERSHIPS IN FIXING FAILED STATES

femain weak, ineffective, or even nonexistent. This not onlyhampers relations with the outside world, but also affects thel i i i i oí tailed state inhabitants.

Prospects foi- Intemal DevelopmentSince tlie causes oi the crisis are usually endogenous, it fol-

lows that intemal forces should be harnessed for the recoveryprocess. The cases of Japan and Gennany after World War IIcannot be used as precedents tor tnodern practice because theresources and energies available then cannot be compared tothe resources available for current reconstntction.

Two models could be used for state reconstruction. Thefirst of these is the formula adopted by England after theCivil War in the sixteenth centur)' and by matiy cnntinetitalcoutitries after the Thirtj' Years War: the establishment of theLeviathan, as conceived by Thomas Hobbes, as an absolute au-thority to overcome and tame the internal powers that be.

Ibday, establishing such authority would not be an end initself, but rather a step to the later establishment of a liberalpower-sharing constitittional state. In the tbrefront of any suchenterprise is the need to secure the state monopoly of power,with the assignment of police and judiciary resources as thetop priorit)'. The history of the developtnent of critninal lawin Cicrmany as a means to overcome die old fetidal system,offers interesting parallels in this connection.

The apparatus established by newly stabilized states forthe exercise ot authority must be gradually extended in orderto provide an effective system of publie services. To promotethe welfare of die people, this system must also permit the re-sumpdon ot reladons fomierly maintained with intemadonaldevelopment and social work organizadons.

The second approach could be an attempt by the peopleto rebuilt! the state progressively from the bottom up throughself-established structures within the framework of civil soci-ety. In this way, the consciousness of the public and the willof the state can come together and crystallize around variouspoints such as the domains of transport, health, educadon,agriculture, and local government.

Popular energies can thus be mobilized in favor of re-construcdon. Partial arrangements can give an impenis tothe Creadon of a comprehensive puhlic sector and represen-tadve institudons, which alone would permit a governmentto acquire the necessary legidmacy in the long term on afederal or decentralized basis. This approach was successfulin Switzerland, where smaller units grew into a federal stateduring the nineteenth century. It also applies to present-dayBosnia, where the international commimity has focused onbuilding common insdmdons rather than trying to establish astate forthright. The World Bank also supports this approachin develfïping countries throughout Africa and .^sia.

Clearly, this is a tortuous process with an unknown

outcome. Reestablishment of the state will require favorablecondidons both internally and externally. Most importantly,such a development needs to rely on the creadon of sharedaspiradons of the state's future cidzens.

However, of the two forms ol nation-building set outabove, neither could be realized in pure form. The idea ofa spontaneous upsurge and coordinadon of social forces is arather romande nodon: such cooperadon flourishes not somuch in the ruins of a failed state as in situations where freescope is available within an organized whole.

On the other hand, for the sake of human rights and self-determinadon, a Leviathan is a highly uninvidng prospect,even as a stop-gap measure. Two elements are needed: first, acombination of soludons that permit the creadon of graduallycivilizing tbnns of huttian coexistence, and second, the will toachieve polidcal cohesion. Both are crucial in bringing abouta tnodern state that is driven by principle and based on toler-ance with the ability to compromise. At the same time, it isnecessary to ensure the promodon of a political culture anda sense of collective identity-. As a rule, the external forces ofpublic and private life can provide nothing more tlian a littlehelp in the progression toward self-help. Ill

RECIPE FOR FAILURE

Indicators of Failed States

SOCIALMounting demographic pressures

Massive movement of refugees or internally displaced persotiscreating complex humanitarian emergencies

Legacy of vengeance-seeking group grievance or paranoia

Chronic and sustained human flight

ECONOMICUneven economic development along group lines

Sharp and/or severe economic decline

POLITICALCriminalizaron and/or delegitimization of the state

Progressive deterioration of public services

Suspension or arbitrary application of the rule of law and wide-

spread violation of human rights

Security apparatus operates as a "state within a state"

Rise of factionalized elites

Intervention of other states or external political actors

The Fund for Peace

W i n t e r 2 0 0 8 • H A R V A R D I M T E R X . - \ T I O N A L R E V I E W