An international police force is a desirable tool to supplement economic sanctions and application of peace keeping and peace enforcement measures1 as they have so far been understood;
Regime theory provides a useful matrix within which to evaluate the first proposition;
Regime theory suggests that there may be a demand for some kind of international police force.
The paper probes none of these propositions deeply. Rather, it is intended to provide sufficient information for a discussion of the propositions, with the possibility of further analysis and research, depending on the outcome of the discussions.
An international police force would be a useful addition to the tools available to the international community.
"As we consider ways to support the IPTF, we may want to look to the kinds of capabilities that can be found in many countries, in the form of Gendarmes and Carabinieri. Such forces could increase SFOR's flexibility, enhancing the implementation of Dayton as well as force protection"2
Threats to international peace and security now come as much from a breakdown of law and order within states as from military aggression by one state against another.3 Traditional international peace operations forces are not well suited to deal with these threats. Recognizing the inappropriateness of the traditional peace keeping model, the international community has struggled to define the circumstances under which other forms of military intervention under international auspices are appropriate. In recent crises such as Somalia, Bosnia, Haiti, and Albania, the options for international action seemed too stark: diplomacy alone, economic sanctions, introduction of peace keeping forces in situations in which peace had not been established, or large scale introduction of large scale military forces. In all of these cases, the goal was to restore law and order; not to achieve an armistice between opposing armies. The mismatch between the forces available and the problems to be solved is manifest in the reluctance of NATO commanders to move aggressively to arrest indicted war criminals in Bosnia. They perceived arrest as a police problem, themselves as military forces. Superficially, the problem was the rules of engagement. More fundamentally it was a mismatch between the mission and the type of force available.
Three questions are important:4
Under what circumstances is intervention permissible and appropriate?
What kind of forces should be introduced?
What should be the rules of engagement?
The first question, regarding commitment of forces, has two dimensions. The first dimension is whether intervention is permissible under international law. The second dimension is whether an intervention is desirable as a matter of policy.
Intervention under international law is permissible under any one of three theories. First, intervention is permissible if the Security Council finds intervention necessary to prevent threats to international peace and security.5 Second, intervention is permissible as an exercise of self defense under customary international law, preserved by Article 51 of the UN Charter.6 Third, intervention is permissible if it has been requested by the host country because then any intrusion into the sovereignty of the host country has been consented to.7
Even when legal grounds exist for intervention, the decisions necessary to invoke them are in substantial part political. Accordingly, one cannot neatly separate the legal aspects from the political aspects of decision making. The politics of intervention are links to the suitability of the available forces.
As the introduction to this section noted, the type-of-force and rules of engagement questions are interrelated. If the nature of the force does not match the mission, the rules of engagement are not likely to match the mission either. In circumstances in which the mission is to establish and preserve law and order, a police presence more than a traditional military presence is called for. For the international community to cope effectively with the post Cold War order and to the threats to international peace and security likely to be found in it, it must have a new force option: some kind of international police force.
This is not a completely new or startling idea. The Dayton accords provided for an International Police Task Force ("IPTF") - unarmed observers intended to detect problems with the indigenous civilian police and to provide training.8Although the effectiveness of the IPTF has been questioned, it is a significant effort to respond to the need suggested by this paper. A Haitian Interim Police and Security Force (IPSF) was used to retrain the Haitian police. The combined joint task force concept within a revised NATO doctrine can accommodate the international police idea. The Italian-led intervention in Albania was an example of a movement to new types of international law enforcement forces. Italian Carabinieri9 participated in the United Nations Observers Mission in El Salvador ("ONUSAL"), verifying compliance by opposition forces and promoting establishment of a rule of law, in the United Nations Transitional Authority in Cambodia ("UNTAC") to maintain order protect human rights after the cease fire and before elections. Some Carabinieri officers served in Guatemala to monitor compliance with agreements between the government and the revolutionary opposition ("UNIMIGUA").10 The Peace Institute organized a workshop on police functions in international police operations in 1996.11 Colonel Michael Dziedzic, drawing on the lessons of Bosnia, Somalia, and Haiti, has edited a book on international police forces.
Functions and force structures
It is the easiest to describe the nature of an international police force by comparing such a force with more traditional military forces.
The functions to be performed by an international police force, and the characteristics of such a force differ significantly from the functions and characteristics of international military forces. The following matrix summarizes some of the important differences:
International police forces could be organized in a variety of ways. These have been summarized in Colonel Dziedzic’s forthcoming work. One straightforward way to organize such forces is simply to augment the existing UNCIVPOL. This option is unlikely because it would involve significant increases in UN employees in a time of budget stringency at the UN. Moreover, it is far from clear that the existing UN organization has the capacity to train and manage an operational force of this kind.
A second basic option is for states to train reserve forces that could be deployed as part of an international force. For example, in the United States, members of municipal, county, state, and federal law enforcement activities could be designated and trained to deal with international problems. In the event of a threat to international peace and security, these forces could be called up (probably subject to a veto by the state supplying them). The advantage of this approach is that it builds on existing trained police forces. Two disadvantages are apparent: calling up substantial numbers of law enforcement personnel would disrupt domestic law enforcement, and, there would be no mechanism for integrating and directing the resulting multi-national force. Focusing on the national guard might minimize the disruption also, except for military police units, it is not clear that national guard personnel would have the appropriate training.
A third alternative could be implemented on the NATO model and/or within the largely un-implemented concept of Article 43 of the UN Charter. There would be a permanent joint staff such as exists at NATO headquarters and such as is envisioned by Article 47. This standing joint staff would prepare and update plans, doctrine, training materials, and technical standards for integrating police forces from different states. Police commanders would be detailed to the joint staff with periodic in-service training. Force components from different states would participate in joint training exercises.
Rules of engagement
The rules of engagement for an international police force would resemble the rules of engagement for domestic law enforcement units. In framing the rules of engagement, one must think about the relationship between the law enforcement entity and the judicial system. Should the international police force be analogous to an American sheriff, or should it be equivalent to an American municipal police force?12 The sheriff analogy views an international police force as the execution arm of a judicial system, focusing, for example, on arrest of war criminals accused by an international criminal tribunal such as the Hague Tribunal. Setting up an international police force that only, or primarily, would execute process issued by a court – national or international – would have the advantage of limiting the role of an international police force and thus minimizing the mission creep problem. It would also increase legitimacy of police intervention because police would be acting pursuant to a writ issued by some other institution -- one presumably enjoying a measure of legitimacy. In many cases, however, the need is simply for restoration of law and order, and requiring an international police force to go to some tribunal for a writ for everything it wants to do would eviscerate the effectiveness of the force.13 In those cases, the municipal police model would be more appropriate. The municipal police concept would emphasize the patrol and order-maintenance function, necessitating attention to organization in the executive sense. The administrative task would be rather like organizing a municipal police department. Establishing a rule of law, of course, requires more than effective policing; it also requires establishing an effective criminal justice system, including courts, prosecutors, defense counsel, and a prison system. The relationship between an international police force and those aspects of a rule of law must be understood in particular cases.14
Regime theory provides a useful matrix
Merely because establishment of an international police force is desirable or logical does not mean that the international community will establish one. Merely because police type intervention in failed or transitional states is desirable, does not mean the international community will be capable of organizing such intervention. Game theory teaches international relations scholars that the operation of rational self-interest may lead to sub- optimal results.
The Prisoners' Dilemma, a common example from game theory, involves prisoners being questioned separately by a prosecutor. Under the terms offered by the prosecutor, if neither confesses, the worst that can happen is that each will be convicted of a misdemeanor and sentenced to 30 days. If both confess, both will be convicted and sentenced for one year. The prosecutor has promised both of them separately that if he confesses while the other refuses to confess, the confessing prisoner will not be prosecuted at all and the one refusing to confess will be punished with a five-year sentence.15
In these circumstances, the best outcome for both prisoners is for neither to confess. But if both confess, each will be better off than if he refuses to confess and the other confesses. The results in terms of self-interest will be two confessions, resulting in a one-year prison term for each, although both would have been better off if both had refused to confess. This prisoner's dilemma game shows how circumstances may exist in which rational pursuit of self-interest does not lead to a Pareto optimal solution.
Related theories of group action postulate that rational self-interest may make it difficult to engage in collective action even though collective action would be beneficial to everyone. Mancur Olson's 1965 Logic Of Collective Action postulates suboptimal results because of the self-interest in free riding when collective action is proposed.
The prisoner's dilemma and the Logic of Collective Action suggest that sovereign states, acting without the any overarching international legal system to shape their decision-making, will be unable to cooperate on things like international police intervention. But another body of international relations theory -- regime theory -- suggests that cooperation may be possible. “Regimes” are “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actor expectations converge”.16 John Ruggie introduced the concept of international regimes in 1975.17
Realists and neo-realists in the field of international relations -- the group most skeptical about the efficacy of international law and international legal institutions -- have suggested how regimes might make a difference in the sense of influencing the dynamics of international relations. At the highest level of abstraction, they say that regimes can alter the outcome of the prisoner’s dilemma. More specifically, they suggest that:
Regimes may crystallize norms, thus making compliance with the norms more likely because they are easier to understand.
Regimes may reduce transaction costs for developing norms
Regimes may reduce ambiguity as to what conduct constitutes norm compliance and what constitutes violation, making voluntary compliance more likely.
Regimes make it easier to focus social, political, and coercive disapproval for norm violation by reducing the transaction costs for rule compliers who wish to express their disapproval of rule violators.
Regimes facilitate international response because they permit domestic political pressures to be focused on norms and make it easier to mobilize domestic public opinion against norm violators
Robert Keohane agrees, distinguishing his analysis of regimes from that of the institutionalists. Keohane accepts the realist model of "rational egoism" on the part of state actors.18 But Keohane goes beyond the basic assumption of rational egoism and the first-order prisoner's dilemma and free riding models, explaining why these simple rational choice models are misleading in terms of their implications for international relations.19 More sophisticated versions of the prisoners dilemma, including repeated plays by a small number of players, suggests that cooperation may be the result of interaction.20 The possibility of negotiation -- which is the whole point of international regimes -- makes cooperation even more likely.21
My own experience in three fields reinforces the correctness of these theoretical constructs. In U.S. collective bargaining, difficult problems necessitating agreement between labor and management are easier to solve when there is some kind of standing mechanism supplementing periodic negotiations over new collective bargaining agreements. This is particularly true in industries such as the railroad industry that have multiple unions and multiple employers that bargain together. The Railway Labor Executives Association and the Railway Labor Conference are examples of domestic “regimes.” Second, in federal agency rulemaking, the establishment of rule negotiation committees has facilitated the development of regulation drafts in controversial areas. More fundamentally, the establishment of an agency itself can be characterized as a “regime”, substituting for ad hoc political negotiations and litigation in regular judicial forums. Third, growing attention to development of international principles for Internet regulation has been easier when some kind of standing body provided obvious channels for trans-national interaction and a staff to support that interaction.
Merely because regimes may be helpful in some areas of international (or domestic) relations, of course, does not necessarily mean that they can be helpful in the international security area. Writing before the end of the Cold War, Robert Jervis considered whether there is a demand for regimes in the security arena as well as in the trade arena.22 He concluded that the political dynamics creating incentives for regimes can exist in both trade and security arenas. “Tariff wars can be seen as analogous to arms races, beggar-thy-neighbor trade policies look like attempts to gain short run security, the dispoiling of the global common resembles a war that both sides hope to avoid.”23 He identified, however, four important differences:
greater competitiveness in security than in economics, in part because trade competition is not as likely to be a zero sum game as security competition
both offensive and defensive security motives can lead to an arms race.
prisoner’s dilemma stakes are higher in the security arena than in the trade arena.
detecting what others are doing and measuring one’s own security is more difficult than determining relative positions in trade.
These factors, he suggested, make the prisoner’s dilemma more acute in the security arena.24 When one thinks about Jervis' four factors, however, it becomes obvious that all of them relate to international competition in the security area rather than international cooperation. They are more appropriate to evaluating the prospects for a disarmament regime than they are to evaluating the prospects of an international peace operations force.
With respect to international cooperation necessary to shape determinants of intervention, to design an appropriate force, and to decide on an rules of engagement, the incentives and disincentives operating on states are not obviously different in kind or magnitude from those operating on the same states with respect to their establishment of trade agreements and the organizational machinery necessary to implement them.
Before proceeding to sketch some of those incentives and disincentives and to evaluate how regimes might make things easier, it is appropriate to note one caveat. Robert Keohane has observed that maintenance of international regimes is easier than their creation. This would explain why NATO is a more effective regime for the application of multinational military power than extraordinary U.N. operations such as that attempted in Bosnia.25 Keohane's observation also suggests that a standing international police force would engender fewer political costs than international police intervention organized on ad hoc bases.26
Regime theory suggests that there may be a demand for an international police force
An international police force would facilitate norm development at three levels
While regimes can facilitate interstate cooperation of any kind, much of regime theory focuses on how regimes facilitate development of international norms and state compliance with those norms. Peacekeeping norms exist at three levels: norms for intervention, norms for participation, and norms representing rules of engagement in a given intervention. The third level of norm may be expressed in orders issued by particular institutions such as international courts.
The decisions to which regime theory is most pertinent are the decision to commit forces and the related decision is whether to contribute to the forces once a basic decision has been made to commit. As noted supra there are two dimensions to the committal decision, also influencing the supply decision: whether the intervention is permissible under international law, and whether it is politically prudent. Section ___ of this paper summarized the grounds for intervention under international law, which are infected by political considerations.
Regime theory is helpful in understanding whether a pre-existing institutional structure can reduce the transaction costs associated with these decisions. For the committal decision, the regime analysis may vary for the three different legal grounds for intervention. The first ground under international law requires a finding by the UN Security Council. There the answer is yes; the existence of the Security Council (a regime) reduces transaction costs in reaching the kind of international consensus among major powers necessary for intervention. Regardless of how difficult decision making is in the Security Council, it surely is less difficult than if the Security Council did not exist.27 Of course, to the extent that hegemony exists, the hegemon may find it easier to act unilaterally than to build a consensus multilaterally through the Security Council or otherwise,28 but that does not mean that the Security Council is not useful when international consensus is desirable.29
The self defense ground is less likely to be used as a ground for police type intervention because the problem that a police intervention is intended to solve is less likely to present a traditional military threat to other sovereigns. To the extent, however, that refugee flows and other spillovers threaten the sovereignty of other nations, self defense may available. Then, the existence of institutional mechanisms can facilitate a multilateral conclusion that self defense justifies intervention.30 This would be the case, for example if an international police system included norms for supplementing border protections with international forces, more or less as international forces have been used in Macedonia.
A pre-existing regime may also make it easier to obtain consent to intervention -- the third legal ground -- because it provides a framework within which the interveners and the host country can determine the exact nature of the intervention. The existence of an international police force also can facilitate consent because it makes it clearer and more predictable what form the intervention will take. Asking for international police assistance is more consistent with maintaining sovereignty than asking for foreign military forces.
In it is reasonable to conclude also that a standing international police mechanism will facilitate creation of norms for participation and norms comprising the rules of engagement. The permanent staff structure of NATO is useful in establishing the details of force structure and of the rules of engagement which then simply can be ratified by member states at periodic ministerial meetings. Having to work out norms for participation and for rules of engagement from scratch every time intervention is decided upon obviously is much more difficult.
Political agreement among nations on norms, of course, depends on sufficient domestic political support within each nation. Regimes in general assist in conferring legitimacy on multinational activities. More specifically, the existence of a continuing international police force would make it easier for domestic mass audiences to understand and accept the nature and legitimacy of multinational intervention.
The formation of political will to use an international police force may be easier to mobilize, compared with the political will to use an international military force. That has much to do with the decision-making structure through which intervention is decided upon. But, the outcome can be influenced by the possibility of smaller scale intervention, the possibility of intervention of forces made up of contributions from one or a few states rather than only from large states; it may also lessen the perception that international intervention entirely overbears the sovereignty of the host state.
Regional or global organization?
If a regime is helpful in establishing the three types of norms for international peace operations, the final question is whether the regime would be more useful if constructed on a global or regional basis.31 Regional institutions are easier to establish. Within them, consent is easier to obtain simply because there are fewer parties32 But, establishing an international police force on a regional basis means that more forces must be established for the world as a whole (one for each region), which multiplies the total costs of establishing the forces. There are no doubt economies of scale associated with an international police force.
Regimes at the tactical level
Certain aspects of regime theory also help evaluate the implications of various forms of international police force, and the rules of engagement. The most useful idea is that the demand for regimes arises from a kind of “market failure” in the political arena, caused by insufficient information and other transaction costs.
Insufficient information exists in the failed state setting at the tactical level: military intelligence is not well suited to obtain the requisite information for reestablishing a rule of law. Other transaction costs include the likelihood that application of military force will inflame the local populace, thus making achievement of the goal of the rule of law more difficult; and the likelihood that the military force structure is too cumbersome to respond to small-scale threats to security as from bandits and informal and ad hoc acts of intimidation. Moreover, the integration between military forces and the rest of the civil justice system is unlikely making arrest, detention, pre-trial bail determination and presentation for trial cumbersome at best. A well constructed international police force may make the integration with other criminal justice institutions easier.
1 The UN Secretary General has suggested that "peace operations" encompases: 1. Preventive Diplomacy; 2. Peacemaking; 3. Peacekeeping; 4. Peace enforcement; and, 5. Peace building. LCDR Glenn T. Ware, The Emerging Norm of Humanitarian Intervention and Presidential Decision Directive 25, 44 Naval L. Rev. 1, 12 (1997)
2 Statement by Secretary of State Madeline Albright, prepared for delivery at North Atlantic Council Ministerial Meeting NATO Headquarters, Brussels, Belgium, December 16, 1997.
3 See generally Arthur I. Cyr, After the Cold War 147, 157 (noting need to rethink NATO mission and foreign policy generally in terms of new threats).
4 LCDR Ware has suggested a somewhat similar framework, including questions of "just cause" for intervention, and assessment of different means for intervention. LCDR Glenn T. Ware, The Emerging Norm of Humanitarian Intervention and Presidential Decision Directive 25, 44 Naval L. Rev. 1 (1997)
5 Such a legal decision by the Security Council is apparently unreviewable by any other institution, although commentators have presented arguments that the International Court of Justice should have jurisdiction to review Security Council decisions. See W. Michael Reisman, Comment, The Constitutional Crisis in the United Nations, 87 Am. J. Int'l L. 83, 93 (1993) (questioning whether there are any substantive limits on the Security Council when it is operating under Chapter VII, and finding the Council's application of the term "threat to the peace" to be "quite elastic"); Vera Gowlland-Debbas, The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case, 88 Am. J. Int'l L. 643, 671 (1994) (arguing that the Council is constrained by Charter provisions, but that its finding of a threat to the peace will be challenged only in the event of "a manifest irregularity or abuse of power"). See generally Jose E. Alvarez, Judging the Security Council, 90 Am. J. Int'l L. 1, 2-4 (1996) (discussing the debate between "realists," who oppose the idea of judicial review of the Council's actions, and "legalists," who favor such review); David Wippman, Defending Democracy through Foreign Intervention, 19 Houston J. I. Law 659, 687 n.76 (1997) (citing foregoing authorities). Security Council Resolution 794, adopted in December, 1992, for the first time authorized the introduction of peace operations forces into a country (Somalia) without its consent. Professor O'Connell has suggested however, that the UN Charter and the Security Council's interpretation of it are likely to revert to the norm that only cross-border conduct can constitute a threat to international peace and security. See Mary Ellen O'Connell, Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy, 36 Colum. J. Transnat'l L. 473 (1997). This would diminish this basis for intervention in an intrastate breakdown of law and order.
6 Article 51 conditions the privilege of self defense, however. "Nothing . . . shall impair the inherent right of . . .self defense if an armed attack occurs . . . ." UN Charter art. 51 [emphasis added].
7 The application of these grounds in the failed state scenario is somewhat artificial. The self-defense justification, while plausibly based on the spectre of refugee flows, is certainly divorced from its original context -- self-defense against a conventional military attack across borders. In that respect, however, the second ground is no more artificial than the first, inasmuch as the peace-and-security-threat threshold for UN Security Council authorization similarly requires interpretation to include refugee flows or humanitarian concerns. The third ground also is artificial because in a failed state the authority capable of consenting to the introduction of force will be ambiguous or contested. Perhaps most important, all three grounds are artificial because if the only forces to be introduced are police forces, their presence will be ineffective unless basic pacification has been accomplished. In other words, international police forces cannot successfully resist opposition to their presence by conventional military forces. In the absence of de facto consent, international police forces simply become an international intelligence presence or commandos.
8 See Dayton Accords, Annex 11, http://www.vcilp.org/vcilp/bosnia/dayton/annex_11.htm.
9 Sometimes known colloquially in Italy as the "military police."
10 Gabriella Venturini, Italy and the United Nations: Membership Contribution and Proposals for Reform, 20 Hamline L. Rev. 627, 630 (1997)
11 See Roxane D. V. Sismanidis, Police Functions in Peace Operations: Report from a workshop organized by the United States Institute of Peace (1997) (Peaceworks No. 14, United States Institute of Peace)
12 The distinction is only approximately similar to the distinction between administrative police and judicial police in France. The administrative police perform a patrol function, while the judicial police have arrest powers and conduct criminal investigations. The administrative/judicial police distinction is not reflected in force organization, but in qualifications and powers of individual members of the force. See Edward A. Tomlinson, Symposium: Comparative Criminal Justice Issues in the United States, West Germany, England, and France - Nonadversarial Justice: The French Experience, 42 Md. L. Rev. 131, 157 (1983) (describing organization of French justice system, including police).
13 See generally Major Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 Mil. L. Rev. 1 (1996) (arguing for amendments to UCMJ to authorize court martial or military commission jurisdiction to try persons committing international crimes during Operations Other Than War ("OOTW"), drawing from experiences in Somalia, Bosnia and Haiti).
14 See Roxane D. V. Sismanidis, Police Functions in Peace Operations: Report from a workshop organized by the United States Institute of Peace (1997) (Peaceworks No. 14, United States Institute of Peace)
15 Keohane at 68.
16 Robert O. Keohane, The Demand for International Regimes, and Stephen D. Krasner, International Regimes at 141, 1401 (1983.)
17 Keohane at 57.
18 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy at 67 (1984).
19 Keohane at 72-73.
20 Keohane at 76.
21 Keohane at 76.
22 See Robert Jervis, Security Regimes, and International Regimes 173 (ed. Stephen D. Krasner 1983).
23 Id at 174.
24 Id at 174-75.
25 See generally Alan K. Henrikson, The United Nations and Regional Organizations: "King-Links" of a "Global Chain," 7 Duke J. Comp. & Int'l L. 35 (1996)(suggesting possibility of regional security organizations being tied more tightly to UN to enhance prospects for successful international military intervention).
26 Keohane at 50.
27 The proposition is debatable. The United States was ambivalent about seeking Security Council approval for military opposition to Iraq in the Gulf War, because it was afraid it would get the wrong answer..
28 But see Richard Haas, The Reluctant Sheriff (1997) (arguing that truly unilateral action by the United States is becoming less feasible).
29 Richard Haas, in The Reluctant Sheriff, does not give enough attention to the role of regimes and institutions in organizing the kind of consensus he rightly explains is necessary to support U.S. intervention in the post Cold War world.
30 Some commentators argue that the threat of refugee flows from failed states can trigger the privilege of self-defense under international law. See Brian K. McCalmon, States, Refugees, And Self-Defense, 10 Geo. Immigr.L.J. 215, 216-17(1996).
31 See generally UN Charter art. 52 (preserving privilege of establishing regional agreements for dealing with peace and security).
32 See Keohane’s comments about fewer parties mitigating the free rider and prisoners dilemma problems.