Thursday, July 27, 2006

Miscausation in the International Law of Conflict Resolution: The Possibility of Error in Conceptions of the Israel-Hezbollah Conflict

In the recent past I posited a "Führer Principle" of international law (Larry Catá Backer, "The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review 21:509-567 (2003). It posits a necessity of error in the constitution of individual authority and communal power. Communities - the nation-state, religious communities, terrorist organizations - are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes - the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities - maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power - over the priest, the president, the judge, the leader - through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility, serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of miscausation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of grounding modern international humanitarian law in the personal responsibility of individuals for their acts.

Miscaustion as a basis of international relations, and the legal framework through which it has been institutionalized (to some extent at least), is not derived from the "usual sources" of international relations theory. Precisely because these usual sources serve as the basis for the miscausation of international relations, and the legal framework through which it finds expression, it was necessary to look beyond that framework to its roots. For that purpose, the insights of Nietzsche provided a useful source. Nietzsche developed the insight of four great errors of causation that, to a great extent, served as the organizing foundation for communal power (Friedrich Nietzsche, Twilight of the Idols, in The Portable Nietzsche 464, 492-501 (Walter Kaufmann, trans. Viking Press, 1972).

The first of these errors is the confusion of cause and effect. Nietzsche explains "The newspaper reader says: this party destroys itself by making such a mistake. My higher politics says: a party which makes such mistakes has reached its end; it has lost its sureness of instinct.” Nietzsche, supra, at 493-494.

The second of these errors is the creation of false causality. In explaining the methods by which the appointed interpreters of communal norms maintain their dominant position, Nietzsche provides an example: “He even took the concept of being from the concept of the ego; he posited ‘things’ as ‘being,’ in his image, in accordance with his concept of the ego as a cause. Small wonder that later he always found in things only that which he had put into them. The thing itself, to say it once more, the concept of thing is a mere reflex of the faith in the ego as cause.” Nietzsche, supra, at 495.

The third of these errors, the creation of imaginary causes, is particularly potent in the manifestation of a
führer principle. “Thus, one searches not only for some kind of explanation to serve as a cause, but for a particularly selected and preferred kind of explanation—that which has most quickly and most frequently abolished the feeling of the strange, new, hitherto unexperienced: the most habitual explanations. Consequence: one kind of positing of causes predominates more and more, is concentrated into a system, and finally emerges as dominant, that is, as simply precluding other causes and explanations.” Nietzsche, supra, at 497-498."

The last error, the falsity of free will, suggests a more subtle insight. “Today we no longer have any pity for the concept of ‘free will’: we know only too well what it really is—the foulest of all theologians’ artifices, aimed at making mankind ‘responsible’ in their sense, that is, dependent upon them. . . . The entire old psychology, the psychology of will, was conditioned by the fact that its originators, the priests at the head of ancient communities, wanted to create for themselves the right to punish—or wanted to create this right of God.” Nietzsche, supra, at 499.

The term führer principle was chosen deliberately. In its descriptive sense, the term invokes the principle of a (false) active leadership and passive political community, which serves as the lynchpin of international humanitarian law. It's roots stretch back to Biblical understanding of the relationship between a political community and its leader. The use of the
German terminology provides a subtextual, and naughty, reminder of the perversity and corruption of the condition to which the term refers. The modern manifestation of a führer principle of governance originated in Germany during the period of Nazi rule, 1933-45, to describe principles of democratic governance, centering on the notion of the leader as embodiment of the sovereignty of the people (Arthur Kaufmann, "National Socialism and German Jurisprudence From 1933-1945," 9 Cardozo Law Review 9:1629, 1637-41 (1988) (law was an expression of the democratic will of the community as embodied in Hitler). Having vanquished, at great cost, the socio-political community which held to and acted on this principle, the West appears to have adopted an inverted variant of the premise of this "Leader Principle" (again) as the foundation of modern humanitarian law. The West now distinguishes between a community that educates and prepares its members for the commission of violent or criminal acts, and the individual who actually effectuates the act. The individual actor is treated as an actor free of any connection with or service for communities that might have made his actions possible in tangible and intangible ways.

It was with these notions in mind that I read a recent editorial in the American national newspaper, U.S.A. Today ("Lebanon's Past is No Model for Its Future," U.S.A. Today, July 27, 2006 at 11A). My sense is that this editorial represents the mainstream thinking of the American elite, and especially the assumptions the American elite relies on its conceptualizing the nature of the conflict in the Middle East and the scope of appropriate responses. To some extent, the views represented also reflect, though in less provocative form, the thinking of elites across the developed world. Yet those assumptions, so well articulated in this editorial, also clearly reveal the way in which Nietzsche's errors of causation have, to some great extent, also permeated thinking about international problems and the legal framework through which they must eventually be resolved. For that reason, the editorial is worth working through.

What does this editorial suggest? The editorial starts with a call to the great principle that history repeats itself. It reminds the reader that in 1978 an Israel "desperate to defend itself against terrorist attacks along its Northern border" invades Lebanon resulting ultimately in a U.N. call to withdraw and the deployment of a temporary international observer force to watch the border between Israel and Lebanon. It then suggests that the situation is worse today because, as a result of this initial invasion, a return invasion four years later, and a long term occupation of a security zone in southern Lebanon, Israel "spawned" Hezbollah, "a far more powerful threat than the isolated Palestinian terrorists it replaced." The editorial applauded Secretary of State Rice's deflection of the usual calls for an immediate cease-fire and call for a more lasting peace enforced with an international force of some kind. But the editorial then notes pessimistically that even with all of Israel's military strengths, it has met with a "cunning guerilla force dug into warrens, caves and tunnels, all under the noses of U.N. observers." And it notes that though Secretary Ricer has proposed an international force, no countries have stepped forward to volunteer (though days after a number of states--France, Turkey, Norway and others indicated a willingness to participate). The editorial alludes, without actually suggesting, that the cause of this reluctance might be the death of the 241 American servicepersonnel killed in Lebanon in 1982 (no nation wants to send military personnel to a war zone and risk death it seems) and suggests that disarming Hezbollah is unlikely by any U.N. force. Consequently, the editorial suggests its own solution: the United States must engage in dialogue with the combatants--principally Israel, Hezbollah, Syria and Iran. The editorial suggests a critical distinction between what it terms "negotiation" and what it suggests can be classified as "communication" so necessary to maintain "leverage" in the Middle East (though it is not clear what, if anything, this leverage concept means). The editorial then invokes the necessity of maintaining "the democracy that seemed so promising in Lebanon just a few months ago." The editorial suggests that "communication", which has for this part of the editorial been relabeled, remarkably enough, "negotiations for a ceasefire" provide a chance to open a dialogue that might exploit differences between Syria and Iran (Hezbollah's principal backers) "first to stop the killing and rein in Hezbollah and then for other reasons." This, the editorial concludes, is the only way to prevent history from repeating itself.

While the language of the editorial is very pretty indeed, it reveals the possibility of the sort of backwards logic suggested by Nietzsche. I do not necessarily advocate a particular view; I do, however, suggest that Nietzsche's insights suggest a great caution when grand proposals are made. Let me suggest a few examples:

1. The confusion of cause and effect.
Cause and effect are nicely confused in the editorial's suggestion that negotiation with Hezbollah, Syria and Iran is necessary to preserve democracy in Lebanon. It might be equally true that democracy in Lebanon will never take root as long as it is necessary to negiotiate with non-state parties (Hezbollah) and other state actors (Syria and Iran). Another is the editorial's suggestion that the reluctance to volunteer troops for a peacekeeping force in southern Lebanon is grounded in part on the power of Hezbollah to successfully resist such forces. It might be equally true that military intervention, even at the international level, is impossible because Hezbollah reflects the will of the Shi'a Lebanese people, and is actively supported by large segments of the Lebanese civilian population many of whom might be counted on to actively help Hezbollah resist any foreign intervention. This last point is as much a history lesson ignored by the editorial as the more facile historical assertion it makes.

2. The creation of false causes. There are a number of false causes deployed in the cause of negotiation and articulated in the editorial. For example, the editorial suggests that Hezbollah retains its power only as a vassal of Syria and Iran. But it may be as likely that Hezbollah derives its strength from its close connection with the Shi'a people of Lebanon. Syria and Iran merely provide aid, and may even be able to influence Hezbollah among choices any of which might be acceptable to Hezbollah. But neither state has the power to effect the disarmament or dismemberment of the organization. Nor is it likely that Hezbollah, now a potent political, institutional, and religious force within Lebanon, likely to be willing to self-destruct. The connection between cause and effect may be loose, indeed.
Likewise, it is possible that the editorial's assertion that Hezbollah was able to develop into a great military force effectively serving as the government of southern Lebanon despite the presence of U.N. observers is an exercise in false causes. It may be as likely that Hezbollah was able to develop into a strong military and institutional presence in Lebanon as a consequence of, with the passive aid of, and congruent with the policies of the United Nations as conveyed to the observer forces.

3. The creation of imaginary causes. Imaginary causes are grounded in the search "
not only for some kind of explanation to serve as a cause, but for a particularly selected and preferred kind of explanation—that which has most quickly and most frequently abolished the feeling of the strange, new, hitherto unexperienced: the most habitual explanations." Nietzsche, supra, at 497-98. There are a number of examples of imaginary causes in the editorial: fear of casualties keep states from committing military forces to a war zone; that any Israeli action will produce a reaction of equal or greater force; that a U.N. force would be ineffective. Perhaps the greatest imaginary cause, in this sense, is the all too facile resort to history--and especially historical tragedy--to explain away a policy determination. In this case, the foundational assumption of the editorial--like that of many in the Western elites--is that military intervention always spawns insurgency, that this insurgency quickly develops from defensive to offensive activity, and that that can not be halted by international military efforts. Yet history lessons can as often serve as a veil covering unpalatable rationalizations. That might be the case here, where the position of the editorial staff of a fairly "middle of the road" American newspaper seeks to advance a position contrary to that of the federal executive. Moreover, lessons can be so subjective that they can reveal more about the fears of those who resort to a particular history lesson than about history or its lessons. Again, the editorial is revealing here for the way in which American exceptionalism continues to shape the beliefs of elites. This exceptionalism here takes the form of a sense that American power or persuasiveness is the necessary ingredient leading to the resolution (or more likely containment) of the current military manifestation of an intractable conflict. But it is as likely that the parties have relied as much on this sense of American exceptionalism to keep the conflict alive (the reference to the failed Clinton Administration talks between the Israeli's and Palestinians is telling). Why?; to retain the possibility that their position may ultimately be successfully adopted. Both Israel and the Palestinians have played the game of delay masterfully, enabled by a series of complicit American Administrations which failed to grasp the larger picture, or an appropriate lesson from history. Don't misunderstand. I believe in the value of history as a useful instrument of policy. But history's lessons are far less clear than the proponents of particular versions might be inclined to believe.

4. The error of free will.
The editorial's suggestion of the necessity of American intervention, and of the need for American diplomacy to negotiate with it enemies nicely evidences the error of free will. American elites induce these errors because it seems to be in their interests to do so. In this respect, they may, like their Iranian counterparts, prefer to establish a foundation for conflict management rather than resolution. Unlike their Iranian counterparts, who may see in conflict management, a step toward the fulfillment of a peculiar religious vision (a topic on which I have written before), the West adopts the same position for the opposite reasons--to postpone an otherwise bloody resolution of conflict. Thus the great perversity of modern international relations--one segment of public international society seeks to foment, contain and manage conflict to hasten the resolution of all conflict, while the other seeks to contain and manage conflict to postpone their resolution (in the hopes that time will solve the problem). In this global context, the communication to which the editorial refers will be a greater exercise in (perhaps conscious) miscommunication for opposite ends. This suggests, in great measure, the most potent of Nietzsche's error of causation--the error of free will.

Taken together, the potential of error piled on error suggests a miscausation of titanic proportion. Tragically, miscausation can have significant effects on American interests. Getting back to the question posed by the editorial: what then is to be done. The answer may well be nothing more than containment. Like all conflicts, this one will eventually resolve itself. It is less likely to resolve itself with the active meddling of outside parties who seek to advance their own interests. But it is also likely that no state actor will be able to resist intervening. There is just too much history, too much blood, too much guilt to make it possible to avoid meddling. But with an appropriate understanding that the combatants have irreconcilable positions, that the conflict is international rather than fraticidal, and that the civilian populations of all sides all all equally committed to the struggles advanced by their military forces, then containment policies might be crafted to maximize the American, rather than Iranian or Syrian, positions.

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