The New Frontier for International Law

Governments across the Middle East and South Asia are increasingly losing power to substate actors as those actors insert themselves at a mezzanine level of rule between the government and the people. Local populations often regard such mezzanine rulers as championing ethnic, religious, or political causes; protecting marginalized communities; and providing vital services, but Western governments think they undermine effective governance and encourage state fragmentation. Western governments also tend to see such movements as temporary, destined to wither away.

Many mezzanine rulers, however, are neither on the escalator to statehood nor sliding into extinction. They enjoy a wide range of formal statuses, and some even have a stabilizing influence at home and regionally. In the Kurdish region in Iraq, mezzanine rulers have been granted some autonomy by the state's federal structure; in Somaliland and Gaza, they are not formally independent, but they operate as near-state entities, existing in a political and legal limbo without international recognition. And although Hezbollah has no constitutional status in Lebanon, it is an established political player domestically and regionally.

Any single one of these movements can be dismissed as anomalous, but taken collectively as a phenomenon, they represent a unique long-term challenge to governments, Western policymakers, and the precepts of international law. By seeking to embed themselves irrevocably in a country's political system and win exclusive control over a segment of the population, mezzanine rulers jeopardize domestic stability. When they resort to terrorism, piracy, insurgency, or other means to advance ideological, ethnic, or nationalist agendas, they pose a threat that goes well beyond the borders of the host state. International law, which remains based on the Westphalian model of nation-states, has not kept pace with this challenge. The gulf between international law and local realities frustrates efforts to tackle the problems posed by mezzanine rulers. To remedy the resulting paralysis, Western governments must work over time to recast the international legal environment. That will be a slow process. Meanwhile, they should change their approach to these destabilizing mezzanine rulers by launching a coordinated effort to counter their appeal to local populations.SEIZING THE GROUND

Many central governments between the Mediterranean Sea and the Karakoram mountain range are strikingly weak. Lebanon, Iraq, Afghanistan, Pakistan -- all are composed of a patchwork of religions, sects, tribes, and ethnicities. Where political balance between the groups has been achieved, for example, in Lebanon, the outcome is a feeble state. Where one community dominates, other groups feel disenfranchised. In some cases, such as Iraq, the central government then struggles to maintain control over territory. In others, such as Somalia, the state has disintegrated entirely, resulting in a violent free-for-all.

Such environments are ripe for the emergence of mezzanine rulers. Disenfranchised local communities often identify with them thanks to a shared religious affiliation, ethnicity, or frustration with the government. Seeing no advantage in looking to the state for help, they see the mezzanine group as kindred, articulating their grievances and seeking to address them. Drawing on their welfare support organizations and militias, mezzanine actors can build allegiance and resilience in a way that governments find difficult to do. Their accessibility and adaptability can make national leaders look unresponsive, flat-footed, and corrupt -- as indeed they may be. Deep roots in local communities are the mark of the most successful mezzanine actors.

Of all mezzanine rulers, Hezbollah, the Iranian-backed Shiite organization that dominates southern Lebanon and parts of Beirut, is the most developed. It has become a model and in this respect has replaced the Muslim Brotherhood, the Sunni Islamist movement in Egypt, which was once the regional prototype. Hezbollah is well organized; it has a charismatic leader, Hassan Nasrallah; and unlike most other mezzanine groups, it represents its constituency in national political processes. It has strong financial inflows and supplies education, welfare, and emergency aid to its supporters. It has a military wing and security and intelligence agencies, and it showed during its war with Israel in July and August 2006 that it is capable of deploying advanced tactics and sophisticated military technology. As U.S. Secretary of Defense Robert Gates noted in April 2010, Hezbollah has more missiles and rockets than most governments.

By mixing religion, ideology, social welfare, politics, and occasional violence, Hezbollah has gained legitimacy with local communities and developed sophisticated institutional practices, which give it strength and resilience. The movement is at once a religious organization, an aid organization, a political party, and a paramilitary force. This makes it hard for governments to know how to categorize and confront it. The U.S. government, for example, considers Hezbollah a terrorist organization and has banned its television programs, financial arms, and charity activities from operating in the United States. The British government proscribes only Hezbollah's military wing, including its External Security Organization, but allows the group's political, social, and welfare elements to proceed unhindered. The disparity between countries' domestic counterterrorism legislation helps Hezbollah because it inhibits a consistent, unified Western response to its activities.

Most other groups are far less flexible and developed than Hezbollah. Starting in 2003, Jaish al-Mahdi, an Iraqi Shiite movement, deployed militias and terrorist groups, as well as political and welfare arms, in Baghdad and southern Iraq to increase its influence among poorer Shiites there. But poor leadership, ideological incoherence, and resistance from coalition and Iraqi forces impeded its attempts to replicate Hezbollah. Operating in a conflict zone such as Iraq is a mixed blessing for would-be mezzanine rulers: it offers them an opportunity to consolidate their assets, territory, and loyalties, but it also exposes them to the full force of their opponents' military capabilities.

Mezzanine rulers are better off when their leadership and key facilities are protected by effective defensive capabilities, as are Hezbollah's, or when they enjoy a safe haven and external political or military support, as do the Afghan Taliban. The latter exhibit many features of the classic model of a mezzanine ruler. Their Sunni ideology is closely linked to local Pashtun nationalism and culture. Their political and military wings shadow corrupt, foreign-backed institutions in Kabul. They have terrorist capabilities; deploy insurgent technologies, such as improvised explosive devices; draw a steady income from the narcotics trade; and enjoy support from a network of madrasahs. Crucially, they benefit from a safe haven in Pakistan, where their leadership and supply facilities lie beyond direct coalition reach and from which they can project their power.

The Pakistani Taliban, who share much of the Afghan Taliban's religious outlook but with Pakistan-focused objectives, are a looser amalgam of affiliated groups, all with local agendas. They use their base in Pakistan's tribal areas to dominate Peshawar and parts of Khyber Pakhtunkhwa (formerly known as the North-West Frontier Province). But the Pakistani army has contested their exclusive occupation of those territories and recovered control of the Swat Valley, a district of Khyber Pakhtunkhwa, in 2009. So although the Pakistani Taliban are a serious, and potentially existential, threat to the state, they lack the hold on territory and coherence required to be fully effective mezzanine rulers.

Indeed, unchallenged long-term territorial control is a necessary condition for mezzanine rulers to survive and to consolidate and extend their power. Al Qaeda has failed to achieve this in Iraq, despite its aspirations to create an Islamic state there. Coalition forces made it their mission to prevent this by fostering the Sunni Awakening movement in 2005, encouraging Sunni tribes to join them against the insurgency. And in the tribal areas of Pakistan, where al Qaeda shares tough geography with the Pakistani Taliban, other jihadists, and restive tribes, U.S. drone strikes have sought to deny al Qaeda a safe haven from which to operate. Even al Qaeda needs some semblance of local stability to prosper, but rivalries among local clans and militias in Somalia have prevented it from establishing itself there. And it has not been able to do so in Yemen, either, despite the fact that some al Qaeda leaders are Yemeni and the Yemeni government has a history of making tactical accommodations with it.

No matter what form they take, once mezzanine rulers establish near-exclusive control in an area, they tend to become authoritarian and antipluralistic, ruthlessly eliminating rival groups. Mezzanine groups and their leaders lack any kind of culture of accountability, and their need for regular income makes them prone to corruption and organized crime. It is often difficult for counterinsurgency forces to distinguish the criminal from the politically motivated. In Afghanistan and Iraq, for example, much of the violence in past years appears to have been pure gangsterism, much of it conducted by militias. The lack of accountability and the acceptance of criminal behavior create a climate of intimidation that cows domestic opposition and reinforces the mezzanine rulers' control over a community.ADVANTAGE: MEZZANINE RULERS

Despite the obstacles mezzanine rulers generally face in establishing authority, the pendulum has swung in their favor in the Middle East and South Asia in recent years. Four factors have given them an edge: modern communications, new military technology, government support, and a lack of outside scrutiny.

The spread of modern communications technology has eroded one of the state's historical advantages in the Middle East and South Asia: control over information. State-controlled media used to allow the government to present only what it found palatable. But global interconnectedness, through satellite networks and the relatively ungoverned space of the Internet, encourages ideas to spread across national boundaries. The situation of governments is weakened further because they often have poor relationships with their neighbors, which subject their populations to hostile propaganda. Meanwhile, improved public access to and the falling costs of communications technology benefit mezzanine actors. Governments can no longer easily shut down lateral communication between citizens. Even simple texting has complicated the efforts of governments as disparate as those of Greece, Iran, and Myanmar (also called Burma) to quell antigovernment demonstrations in the last few years.

Mezzanine rulers have also benefited from a shift in military technology that gives nonconventional actors an advantage over conventional forces. Relatively cheap and accessible military technologies, including improvised explosive devices and explosively formed projectiles, give unconventional forces an edge in what the British general Rupert Smith has called "war amongst the people." Using even low-end asymmetric means, suicide bombers can seriously impact the personnel, morale, and credibility of a government. A government that cannot prevent suicide bombings cannot claim to assure citizens' everyday safety. Even when it is possible to protect government facilities and forces from suicide attacks, the costs are prohibitive. Some of the more ambitious mezzanine actors, such as al Qaeda, are also determined to obtain high-end technology, including chemical and nuclear weapons. Against such threats, even a state's most advanced defenses -- drones and other forms of surveillance -- can only do so much. And now Hezbollah is deploying drones of its own.

Mezzanine rulers that cannot develop their own military technologies have increasingly been able to rely from their inception on outside government support. Iran has supplied not only Hezbollah but also Jaish al-Mahdi and even, in a bid to build up populist, pan-Islamic resistance to the West, Sunni movements such as the Taliban, Hamas, and Palestinian Islamic Jihad. In supplying these groups with weapons, Tehran has, in effect, upgraded the technology available to terrorists and insurgents everywhere.

Deploying its particular brand of political venture capitalism, Iran has played a key role in developing or empowering many of the region's mezzanine rulers, but it is not alone. Pakistan has regularly profited from plausible deniablity in using nonstate actors against domestic or external opponents. This can serve short-term tactical goals but often comes at the expense of long-term stability. Two decades ago, the Pakistani military created Lashkar-e-Taiba, the group responsible for the 2008 Mumbai terrorist attacks, to fight Indian control in Kashmir. Now Lashkar-e-Taiba has developed an independent support base thanks partly to its charity arm, which runs popular social-welfare and educational programs. Today, the group's financing is strong, its terrorist capability formidable, and its ideology appealing to many across the country. The Pakistani military is now hard-pressed to control it. Personal relationships between Pakistani military officers and members of Lashkar-e-Taiba have also weakened the resolve of the army to confront the group.

Pakistan's difficulties with Lashkar-e-Taiba illustrate the risks to a state of sponsoring mezzanine actors on its own territory. Proxy relationships establish deep ties that can extend beyond the government's original intentions. Even when the activities of mezzanine actors run against a state's immediate tactical or long-term strategic requirements, it is difficult to get rid of them. The U.S. government knows this lesson well: it sought to exploit the Awakening movement as a proxy to counter al Qaeda in Iraq, but it since has had mixed success in drawing down its former allies and folding them back into the Iraqi military.

The final factor that has favored mezzanine rulers is the increasing scrutiny governments have to endure from foreign media and the international community, which tends to make them more risk averse. Mezzanine rulers, on the other hand, are subject to limited accountability, domestically and internationally, and therefore are inclined to take greater risks. They are generally secretive, repressive, and distrustful of outsiders, and they tolerate Western media only when they can use them for their own propaganda purposes. Mezzanine rulers generally lie beyond the scope of international law, arguing that they are subject only to the laws of their host state, however powerless its government is to enforce them. When the international spotlight does focus on them, the attention is usually even more uncomfortable for their sponsoring state. This explains Islamabad's awkward posture after the Lashkar-e-Taiba terrorist attacks in Mumbai in 2008. And even Damascus has been sensitive about the UN investigation into the murder of Lebanese Prime Minister Rafiq Hariri, in which it is suspected of having been complicit.

Because of these advantages, broad stretches of territory in at least a dozen countries in the Middle East and South Asia now lie beyond the control of the state. Here, governments fail to supply critical services to their citizens because they lack adequate resources, the necessary skills, or the political will to do so. Uneven leadership and infighting within governments often prevent coordinated official action.

The disparity between how these governments function and how their citizens believe they should fuels disillusionment among the public. Many communities view the ruling elite as illegitimate and as corrupt fronts for ethnic or sectarian interests rather than as governments acting for the entire population. Distrustful of the government, people turn to mezzanine rulers to safeguard their interests and living standards. This, in turn, allows mezzanine rulers to argue -- as have al Qaeda and Hezbollah -- that the very weakness of the state necessitates and legitimizes their existence and modes of operation.

But even well-organized mezzanine groups that fail to root themselves in and establish exclusive control of a territory will not prevail against a strong central government. In Egypt, one of the region's few traditionally centralized states, the government successfully contained the Muslim Brotherhood in the 1950s and 1960s. And both Iran and Syria, two other states with relatively strong centers, have been able to repress opposition at home even while they have relentlessly deployed mezzanine actors against their neighbors. But they are not immune to the ambient threat posed by mezzanine actors, either: across the region, political violence, including assassinations and bombings, has become routine.

In weak states where mezzanine rulers have achieved exclusive control over some territory, they can participate in the host state's political process in various ways. They might become a political party (as has Hezbollah in Lebanon), campaign for autonomous status within a loose federal system (such as Kurdish groups in Iraq), or establish a free-standing political entity within a nonfunctioning state (as have mezzanine rulers in Somalia, in Somaliland and Puntland). They might also reject and break away from the state's framework while accepting most international norms (as Hamas has in Gaza) or repudiate both the state and the international system (as has al Qaeda, which views them as un-Islamic).A LAW OF THEIR OWN

Under current international law, the government in each of the examples outlined above remains accountable for all actions, including those of mezzanine rulers, within the territory over which it has sovereignty. This responsibility is grounded in the traditional Westphalian principle of territorial sovereignty and was reaffirmed in the resolution that the UN Security Council passed in response to 9/11, in which it directed all UN members to "prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism." But the attacks of September 11, 2001, have exposed the flaws in the long-standing principles of territorial integrity and nonintervention in the internal affairs of another state without its consent.

The international community was not much troubled by the inability of some states to control all of their own territory when the consequences were only local, but ungoverned space is now being exploited by mezzanine actors to launch transnational terrorist attacks, interfere with international transportation, or destabilize governments, with devastating results for international peace and stability.

International law has previously developed rules for national liberation and secessionist movements on the assumption that they would graduate to statehood status. According to the 1977 additional protocols to the Geneva Conventions, for example, such movements have the same duty to protect civilians as does any national government in a time of war. Early on, however, continued efforts to develop such rules were thwarted by the international community's desire to avoid the breakup of existing states and by disagreements over how to differentiate between nationalist movements and terrorist organizations in cases such as that of the Palestine Liberation Organization.

As a result, there is now a growing number of near states that have received no formal recognition for political reasons. Examples are Somaliland, which declared itself independent from Somalia in 1991, and Puntland, which declared itself an autonomous Somali province in 1998. The mezzanine rulers of Somaliland exercise all the powers and responsibilities of normal governments; what is important is that they maintain firm control over their territory, which would be ungoverned otherwise. Yet Somaliland has not been allowed to graduate to full statehood and is still formally treated as part of Somalia. And Puntland, which awaits an effective Somali government with which to federate, has become a launching pad for many of the pirate attacks around the vital shipping lane between Djibouti and Yemen.

With no effective Somali government, it is impossible for the international community to gain official consent to conduct counterterrorism or antipiracy operations in or off the coast of Somalia. Hence, the international community has been unable to respond to threats emanating from Somalia consistent with international law. If it did respond, it would be subject to criticism that the doctrines of necessity, self-defense, and "hot pursuit" -- all justifications for action without government consent -- did not apply.

The precarious situation in Somalia and off its coast is a strong incentive for the international community to reshape its laws to allow threats to be tackled early on and with assurance. The principle of nonintervention should be adjusted to exclude areas over which no state exercises sovereign control and from which a threat to international peace and security emanates, such as Pakistan's tribal areas or Yemen. It is better for governments to develop a new legal framework as a matter of general strategy now than be left hoping for a tactical legal expedient when the next crisis occurs.

A review of existing international law should also recognize that the mid-twentieth-century model of international relations, which drew a clear distinction between war (to which the law of armed conflict applies) and peace (to which regular international law applies), is outmoded. Just as the distinction between conventional and irregular warfare has eroded, so "war amongst the people" has shaded into routinized violence. Mezzanine rulers tend to specialize in this kind of war, and if future warfare is to take the form of counterinsurgency in constricted civilian environments, then international law on such issues must be reconsidered.ENGAGEMENT AND SCRUTINY

A concerted effort to recalibrate international law will take time. In the interim, Western governments should reconsider their own political approaches to mezzanine rulers. It is in the West's interest for the governments of the Middle East and South Asia to be strong and accountable. However, when they are not, the West is ill served by ignoring mezzanine rulers on the misguided assumption that they are transient and anomalous. Rather than helping host states reclaim control, such an attitude leaves mezzanine rulers unconstrained and reinforces the disparity between international law and the realities on the ground.

Western policymakers should study what voids mezzanine rulers fill for local communities. If these rulers have legitimate political objectives, local governments and the West must try to transform them into normal political parties without paramilitary arms. Then they would be subject to all the constraints that come with regular participation in political processes. By encouraging political dialogue, investment in education and social welfare, anticorruption measures, and fairness in the political process, the West could help reduce people's identification with mezzanine rulers, making them redundant.

Western governments will have to distinguish mezzanine rulers that can be engaged, such as those in Somaliland and perhaps Hamas and Hezbollah, from those that can only be contained, such as al Qaeda and Lashkar-e-Taiba. They will have to distinguish between the various components of mezzanine groups, actively engaging the political wings while forbidding paramilitary activities, combating illegal financing, and constricting the activities of particularly dangerous individuals. There will be complex gray areas, but engagement, including contact between mezzanine rulers and Western representatives, will be the only way to differentiate the politically biddable from the irreconcilably die-hard. The current taboo in some Western governments against engaging mezzanine rulers only reinforces their anti-Western ideology and their constituents' identification with them.

In his speech in Cairo in June 2009, U.S. President Barack Obama indicated his support for engaging Muslim communities and not just their governments. Interacting with mezzanine actors would be a good step in that direction. But the West should also reassure the governments struggling with mezzanine rulers that such engagement is designed to strengthen, not undermine, those governments' authority. Those governments should be encouraged to undertake the political reforms that will help them recover territory and legitimacy from the mezzanine rulers. Improved governance would remove one of the mezzanine rulers' most powerful recruiting tools. Other measures could include redoubling health and educational assistance and increasing emergency aid where required, as the United States did after the 2005 earthquake in Kashmir. For the host governments to benefit politically from such assistance, they would have to be seen as the ones deploying it.

Western countries may not be able to do much to redress the changes in communications and weaponry that have favored mezzanine rulers in the past few years. They have already expended much diplomatic effort toward stopping states from deploying mezzanine rulers against neighbors. Subjecting mezzanine rulers to greater international scrutiny is one way the West could do more. This would expose mezzanine rulers to outside influences and force them to justify their actions. The increased accountability would diminish their appetite for adventurism.

The most effective form of scrutiny is likely to come from within the host states and from those citizens who are close to but not part of the mezzanine rulers' support base. These people are best placed to wage the battle of opinion and values and to recapture support for the state. A carefully directed information campaign by the West could help cast a harsh light on the darker workings of mezzanine rulers. The deliberate erosion of the mezzanine actors' myths and cult of resistance will be vital to success.ARCHITECTURAL REMODELING

Today's Western commentators and policymakers are preoccupied with the passing of U.S. hegemony and the shift of power toward Asia. The growing influence of mezzanine rulers, primarily in the Middle East and South Asia but also in the former Soviet Union and beyond, has received far less attention but represents a transfer of power that demands a reevaluation of international policies. Western policymakers should seek to address the problem systematically, at both a strategic political and a legal level, rather than continue to pursue disjointed reactive measures on a case-by-case basis. Policymakers will need to confront, rather than shirk, strategic complexities.

Just as Washington and other Western governments had to update domestic law in the wake of 9/11, so, too, must they now launch an effort to modernize international law so that it addresses the problem of ungoverned spaces and the outmoded distinction between war and peace. They should encourage improved governance in the Middle East and South Asia so that communities there identify with their governments rather than mezzanine rulers. It is political engagement and close scrutiny that many mezzanine rulers and their backers, including those in Tehran, fear most. And that is just what the rest of the world should provide.

 

MICHAEL CRAWFORD, a Consulting Senior Fellow at the International Institute for Strategic Studies, in London, previously served the British government overseas in Egypt, Pakistan, Saudi Arabia, and Yemen. JAMI MISCIK is President and Vice Chair of Kissinger Associates and former Deputy Director for Intelligence at the CIA.

 

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