An internal challenge: partnerships in fixing failed states.

The term "failed state" has only recently entered into international legal jargon to describe the collapse and dissolution of states. These processes have become relatively frequent of late and are symptomatic of the condition of today's community of states and system of international law. Examples commonly cited include Somalia; Liberia and Sierra Leone, which have been racked by small-scale conflicts throughout the 1990s; Bosnia-Herzegovina in the early days of its independence; Rwanda at the time of the massacres and genocide; and, more recently, Sudan, a country which has been devastated by three conflicts. Although the discussion about the failed state phenomenon has only existed since the end of the Cold War, there are also cases of failed states prior to that period. These cases include the 20-year conflict in Cambodia, brought to an end by the Paris Agreement of 1991; the civil war in Lebanon during the 1980s; and various phases in the development of the Congo, a country that has been hard to govern since independence was achieved in 1960. The same themes were evident in the chaotic power struggles in China during the 1930s and can still be traced back all the way to the Thirty Years' War in seventeenth-century Europe.

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

The Political and Legal Phenomenon

The term "failed state" does not denote a precisely defined situation, but instead serves as a broad label for a complex phenomenon. A state is usually considered to have failed when the power structures providing political support for law and order have collapsed. This process is generally triggered and accompanied by anarchic forms of internal violence. Former Secretary-General of the UN, Boutros Boutros Ghali, described this situation as "the collapse of state institutions, especially the police and judiciary, with resulting paralysis of governance, a breakdown of law and order, and general banditry and chaos. Not only are the functions of government suspended, but its assets are destroyed or looted and experienced officials are killed or flee the country."

Hence, three elements characterize a failed state from the political point of view. First is the geographical and territorial aspect: failed states are essentially associated with endogenous problems, even though these may incidentally have cross-border impacts. The situation is one of implosion rather than of explosion of the structures of power and authority, of disintegration and destructuring of states rather than dismemberment. Second, there is the internal aspect characterized by the collapse of political and legal systems. The emphasis here is on the complete or near breakdown of structures guaranteeing law and order, as opposed to the kind of fragmentation of state authority seen in civil wars. The final element is an external one: the absence of capable bodies representing the state at the international level. Either no institution exists that has the authority to negotiate, represent, and enforce, or if one does, it is wholly unreliable. From the international law point of view, a failed state, while retaining legal capacity, has in all practical purposes lost the ability to exercise it. Moreover, there is no body able to legally commit a failed state to a binding agreement.

The Sociological Perspective

Sociologically, the failed state is characterized by two phenomena. The first is the collapse of the government's core, which Max Weber rightly described as the "monopoly of power." The police, judiciary, and other bodies serving to maintain law and order are no longer able to operate. In many cases, they are used for entirely new purposes. For example, the Congolese militias disintegrated into armed gangs of looters, military commanders set up their businesses using army units for personal enrichment, and those in power exploited state-owned economic resources for private benefit. This situation amounts to a privatization or even criminalization of the state. The monopoly of power is destroyed and society reverts to a primal condition, which Hobbes posited as "the war of all against all."

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The second sociological feature of a failed state is the brutality and intensity of the violence within the country. Eyewitness reports from Liberia spoke of the entire population falling into the grip of a collective insanity following the breakdown of state institutions. These internal conflicts are characterized by a highly unpredictable dynamic and by a radicalization of violence. As a result, the protection of human rights is largely ineffective in failed states.

The Humanitarian Perspective

Since World War II, human rights have gradually been incorporated into international treaties and customary law. At the global and regional levels, a whole host of procedures, mechanisms, and institutions exist for the protection of human rights. However, failed states clearly show that the protection of human rights is dependent on the proper functioning of the state. Human rights need to be given legislative shape and implemented internally, which necessitates functioning state bodies. As a general rule, the mechanisms for monitoring respect for human rights, on the international level, are simply of subsidiary nature. They are extensions of prior state activity. Hence, human rights are asserted primarily against actions by state authorities. Thus, where the state and the administrative infrastructure have collapsed, these rights can offer peripheral protection at best. However, a different body of law exists for situations when regular rules are largely suspended due to extraordinary circumstances. Humanitarian law aims to maintain a minimum of protection when war sets aside most other laws.

This branch of law grew out of old laws of war, and is common for mankind, inasmuch as every civilization has established rules to rein in the cruelties of war. In modern times, it is primarily intended for armed conflicts between states, yet it increasingly deals with internal armed conflicts as well. Article 3, common to the four Geneva Conventions of August 12, 1949, provides a minimal humanitarian standard to be observed by all parties in armed conflicts not of an international character. This provision was elaborated in detail by Protocol II, additional to the Geneva Conventions in 1977, relating to the protection of victims of non-international armed conflicts.

A particular advantage of the rules of international humanitarian law applicable to internal armed conflicts is that unlike domestic human rights law, they call for accountability by non-state actors, whether they are individuals or groups. However, the collapse of state authority impedes the implementation of these humanitarian provisions in practice. International humanitarian law relies heavily on the hierarchical structures of the state and above all, on the military order with its chain of command. These do not usually exist in the case of anarchic conflicts involving loosely organized clans or other units. Where every combatant is his own commander, the traditional mechanisms for the implementation of international humanitarian law are wholly ineffective.

Therefore, it is necessary to explore alternative mechanisms to implement humanitarian law. One method embraced by the International Committee of the Red Cross is the dissemination of information about basic humanitarian law principles in territories prone to conflict through schools and via radio and television. But once a state has disintegrated, the most urgent task is to establish effective means useable at the internal level to re-establish failed states. But today, the responsibility for fixing humanitarian problems in failed states is an international obligation rather than a domestic burden.

Practices of the Security Council

The international order, especially international law, does not leave failed states to simply fend for themselves. On the contrary, the collapse of a state anywhere in the world is seen as a matter of international concern. In practice, international organizations, the UN Security Council above all, have been the main reactors to failed state situations.

Most importantly, the Council has relied on Chapter VII of the UN Charter. The landmark development was the December 3, 1992 Resolution 794 on Somalia, in which the Security Council held that "the magnitude of the human tragedy caused by the conflict" was enough to constitute a threat to peace within the meaning of Article 39 of the Charter. The Security Council has constantly relied on Chapter VII of the Charter in Bosnia-Herzegovina and Rwanda when authorizing states and, in the case of Somalia, the already deployed peace-keeping units to achieve their objectives, with the use of force if necessary.