2013 Duke Political Science Standard

D P S S

Duke Political Science Standard Volume III

Issue 1

Spring 2013

The Great Democratic Experiment: Two American Republics Guided by Montesquieu and Hume Luke Maier

Let Loose the Drones of War: A Place for Drones in Just War Theory Margaret Bice

Assessing Security Sector Reform: Evaluating the Effectiveness of a Development Strategy Targeting SecurityApparatuses Based on National Indicators Ryan Boone

A Democratic Union in the Making: An Assessment of the European Parliament’s Evolution in Relation to Narrowing the Democratic Deficit Marcus Granlund

Deference for the Divine: The Court and the Church Reed McGinley-Stempel

DUKE POLITICAL SCIENCE STANDARD

VOLUME III ISSUE 1 Justin Zhao Editor-in-Chief David Nordlinger Senior Editor Michael Shammas Senior Editor David Watson Senior Editor Kyle Shohfi Editor Chad Vincente Editor, Layout and Design Daniel Dorchuck Editor Allison Candal Editor Advisors Professor Abdeslam Maghraoui Professor Erik Wibbels Suzanne Pierce Special thanks to Emily Schon for contributing to the cover design and the Duke Political Science faculty for their generous support.

Copyright Š 2013 by Duke Political Science Standard (DPSS) at Duke University The Duke Political Science Standard publishes full-length academic papers related to the study of political science. All essays that appear in this issue will also be available for viewing on the DPSS website: http://polisci.duke.edu/undergraduate/opportunities/duke-political-science-standard

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VOLUME III ISSUE 1

Table of Contents

Letter from the Editor v The Great Democratic Experiment: Two American Republics Guided by Montesquieu and Hume Luke Maier 1 Let Loose the Drones of War: A Place for Drones in Just War Theory Margaret Bice 13 Assessing Security Sector Reform: Evaluating the Effectiveness of a Development Strategy Targeting Security Apparatuses Based on National Indicators Ryan Boone 29 A Democratic Union in the Making: An Assessment of the European Parliament’s Evolution in Relation to Narrowing the Democratic Deficit Marcus Granlund 57 Deference for the Divine: The Court and the Church Reed McGinley-Stempel 65

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Dear Reader, It is my distinct pleasure to present to you the third edition of the Duke Political Science Standard. The Standard provides the ideal platform to showcase the extraordinary efforts of many of the best and brightest students here at Duke University who have committed themselves to pushing the frontiers of research and scholarship in the many fields of political science.

The ingenuity and creativity of the students here at Duke University was evident from reviewing the submissions we received. This year the number of extremely impressive manuscripts submitted for consideration made my job extremely difficult but also very rewarding. Ultimately the pieces selected illustrate the breadth, quality, and intellectual rigor of the political science department here at Duke University. This edition of The Standard includes articles covering a wide spectrum of engaging topics within the fields of political science, from a particularly salient article by senior Maggie Bice analyzing drone warfare within the framework of just war theory to an exceptional piece by freshman Luke Maier that analyzes Montesquieu and Hume’s influences on democratic regime theory through American History.

Most importantly, I would like to recognize and thank the countless people who have contributed their time to the continued success of this publication. I would first like to express my sincere gratitude to Ms. Suzanne Pierce. Her unwavering support of this publication since its inception has allowed The Standard to continue to grow in prominence and prestige. I would also like to thank Professor Abdeslam Maghraoui and Professor Erik Wibbels from their guidance and support throughout the process. Additionally, I would like to thank the Duke University Political Science Department without which none of this would be possible. Finally, my editorial board—David Nordlinger, Michael Shammas, David Watson, Kyle Shohfi, Chad Vincente, Daniel Dorchuck, and Allison Candal— has exceeded all my expectations. Thank you all for continually meeting my sharp deadlines and giving countless hours of your precious time toward ensuring we produced a final product that met the unfalteringly high standards we set for ourselves as a team.

The Duke Political Science Standard is one of the few journals of its kind in the entire country, and I am deeply honored and humbled to have served on the editorial board for three years and this year in the position of editor-in-chief. Being immersed in the works of students so clearly committed to excellence in their craft has been one of the most powerful and inspiring memories I will take from my collegiate experience here at Duke University. It is my hope that you will find the collection of works in this edition intellectually stimulating and thought-provoking and that The Standard will continue to nurture the culture of scholarly engagement and intellectual curiousity in the wider Duke community.

All of the essays published in this issue can also be found on our website: http://polisci.duke.edu/undergraduate/opportunities/duke-political-science-standard Justin Zhao Trinity College 2013 Editor-in-Chief

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The Great Democratic Experiment: Two American Republics Guided by Montesquieu and Hume Luke Maier Duke University Abstract In the infancy of democratic regime theory, David Hume and le Barron de Montesquieu offered two conflicting blueprints for how republics should be constructed. While Montesquieu’s thesis pervaded democratic theory for most of the 18th century, it was swiftly and thoroughly overthrown by Hume’s thesis when bold American statesmen established the world’s most experimental regime: a broad federalist republic. Historians have largely overlooked the profound influence Montesquieu and Hume exerted on the development of the republican structure of the United States. Drawing from primary sources and prominent relevant literature, this paper offers a novel analysis of why the revolutionary framers initially clung to Montesquieu’s thesis, and why, later, the constitutional framers embraced Hume’s alternative. The paper traces artifacts of these influences in various times of American History and how they demonstrate the resilience of the federalist republic. This shift in democratic regime theory should be analyzed in order to better understand the origins of the adventurous and wide-reaching federalism of United States.

Introduction Background

America’s unique form of republican federalism is an enduring constellation of political philosophies that aligned under unusual circumstances.

Political historians often overlook two of democratic political theory’s brightest stars, Montesquieu and Hume. Drawing from the work of these and other guiding lights, the framers of America’s two regime structures, the Articles of Confederation and the Constitution, sought to chart a course for their nation’s government that gingerly navigated the tension between empowering negative liberties while operating within the constraints of political reality. Each framing of the American republic struggled with where to anchor the nation’s regime on the governance continuum between decentralization and federalism. Following the American Revolution, the framers favored decentralization. But, as the efficacy of the Articles of Confederation faded in the late 1780s, statesmen

recast their searched for guidance on how to salvage the fledgling democracy.

In the era of the American Revolution, most political theorists – in particular Montesquieu – argued that a republican regime was limited by insurmountable structural and philosophical flaws. Some skeptics of representative layering in government believed all republican regimes were structurally doomed to dissolution. For example, Rousseau dispelled the notion of representative government all together, arguing that direct democracy was the only way to ensure citizens’ interests determined government action (Pateman, 1975). To this end, Montesquieu offered his then widely accepted thesis on the république federative, which asserted that only confederations of small and local republics could pass the test of time (C. Montesquieu, Cohler, Miller, & Stone, 1989). The histories of many democratic experiments before the rise of the US seemed to support this thesis, and the Revolutionary framers treated 1

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it paradigmatically. Yet as the ‘silent canons of time’ wore on, the decentralization Montesquieu advocated seemed to be the root of the problems undermining governance under Articles of Confederation.

In contrast to Montesquieu’s theory on small republics, David Hume asserted republics can be stably and fruitfully constructed to unite vast, diverse lands under a central federalist-republican regime (D. Hume & Haakonssen, 1994). In his seminal work on this subject, “Idea on the Perfect Commonwealth”, Hume wrote that republican regimes should “be divided into a hundred counties, and that each county in turn be divided into one hundred parishes, making in all ten thousand minor districts in the state” in order to protect from internal divisions (Ibid). This paper argues federalism in the United States began as a great and adventurous experiment in political thought that was guided by Hume’s thesis on broad federalist republics.

Purpose Volumes of analysis have been written about the philosophical forces that provoked the Founding Fathers to adopt sweeping constitutional federalism (e.g., see (Cohen, 1995; Eidelberg, 1968; McGuire & Ohsfeldt, 1984), so this paper shall not attempt to contribute to that extent. However, as of this writing, there seems to be no explicit analysis of how early American political theory interacted with Montesquieu and Hume’s theses as practical theories of regime structure. Thus, this paper will analyze why and to what extent Hume’s thesis on the broad republic thoroughly eclipsed Montesquieu’s république fédérative in American regime theory and early political thought.

This paper examines: first, an overview of Montesquieu and Hume’s ideas on democracy; second, why Montesquieu’s thesis dominated republican thought; third, what factors provoked Hume’s thesis to eclipse Montesquieu’s; and finally, how Montesquieu’s thesis in the American context faired over time.

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Definitions In this paper, ‘federalism’ will refer to a structure of government whereby there is a division of sovereign power between state and federal authorities, with local sovereignty inferior to centralized, federal authority and regulation. ‘Confederalism’ will refer to a structure of government whereby state sovereignties possess sovereign power superior to that of federal authorities. ‘Republicanism’ will refer to a structure of democracy whereby citizens’ wills are embodied and acted upon by representatives they elect to a central government. And finally, federalist-republicanism (or republican federalism) will refer to a tiered structure of representative government whereby there is a centralized republican regime that reigns over lesser state republics.

Experimental Beginnings Though Montesquieu and Hume were most notably philosophers, they both offered complex rationally and empirically based theories of republican regime structure. Hume was particularly noteworthy in 18th century political philosophy for his belief in political empiricism, which, he claimed, allowed one to understand the applicability of political principles. In line with Scottish Enlightenment’s tenets of realism but in contrast to most Enlightenment philosophies, Hume argued empirical lenses of impressions and ideas should be used to derive rationalist regime theories that find the elusive balance between efficacy and morality (Werner, 1972). Montesquieu also believed empirical and historical considerations should be considered when discerning constrains on the nature of law (C. Montesquieu & Richter, 1977). However, Hume and Montesquieu similarly believed regimes should not be institutors of morality in their societies, for inherent structural constraints limited the viability of philosophy, religion, and natural law in governmental activity.

The American framers presupposed the desirability of democracy. Their main debates were over

Spring 2013 democratic mechanisms. This allowed them to consult political theories that held democracy was undesirable, yet feasible; both Hume and Montesquieu had certain protests with democracy (Adair, 1951), and Hume argued democracies and republics were not suitable everywhere, especially Britain which he wrote should “cherish and improve” “ancient government” avoiding “dangerous novelties” (David Hume, 1910). Efficacy breaks down when democracies give people of one locale too much influence over vast swaths of other locales; such is the case, Hume argued, when pure democracies are implemented. Early on, the founders looked to this argument and others to conclude a republican government was more desirable than democratic constructs argued for by Rousseau. Yet the extent to which American republicanism was federalist remained in question amongst political theorists long after ratification.

Starting after ratification of the new constitution, America’s foray into the political unknown marked the first instance any republican and federalist government planted its flag across such a vast territory. Many contemporary political theorists embraced Montesquieu’s concept of the république fédérative as political reality (Bruno, 2010). The strong deference to Montesquieu’s republican structure discouraged further contemplation of creating immense republics. At that time, the scant examples of instituted democracy, including cantonal Switzerland and pastoral Poland, all followed Montesquieu’s république fédérative, such that large federations only existed as figments of America and Hume’s imaginations. In his long unpublished 1943 thesis for Yale University (which was one of the first analyses to document the relationship between the Scottish Enlightenment and the American Revolution), Douglas Adair summated this sentiment, writing: To both Adams and Hamilton, history proved that eventually the American people would have to return to a system of mixed or limited

monarchy-so great was the size of the country, so diverse were the interests to be reconciled that no other system could be adequate in securing both liberty and justice. (Adair, 1957)

Hume is not often credited with providing a significant impetus to federalism’s victory in America’s constitutional construction, but his influence cannot be underestimated once one examines his linkage to America’s constitutional founders. Hume’s thesis gave a vital basis for America’s political transition away from Montesquieuian republic. Although Montesquieu’s thesis was periodically cited to defend state’s rights or support devolution of federal power, Hume’s stance that a large republic is possible proved both more influential in federalism’s adoption and truthful in America’s history.

Montesquieu’s Sway and the Articles of Confederation Before the Constitution, most political theorists held Montesquieu’s république federative as political truth, or as Patrick Henry said, a “political axiom” (Ibid).

Existing evidence, simple logic, and ingrained presumption all garnered widespread credence in Montesquieu’s thesis. To build a vast democracy seemed far beyond what the newly re-emerging values of liberty and individual rational equality could logistically handle and morally uphold in government. Until the Articles of Confederation were pronounced dead by American political framers, Montesquieu’s republican theory made America hesitant to espouse a federalist republic. America’s jejunely united states feared treading too far off the beaten path, in terms of the extent to which federalism housed the internal republican structure.

Montesquieu claimed there is an inverse relationship between a republic’s “virtue” and its scale, such that increases in one forsake the other (C. Montesquieu, 1999). A république federative, Montesquieu 3

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argued, enjoys “the interior advantages of republican government and the exterior force of Monarchy” (Ibid). As to the domestic advantages, Montesquieu embodied many contemporary political philosophies, which reasoned republican government makes representative government feasible and satisfactory to society. He concluded monarchy’s greatest societal benefit is its ability to effectively maintain its nation’s military, which he described as the only universally shared interest – one which monarchies pursued to “spring their pride” (Bruno, 2010). Drawing from Hobbes’ social contract, Montesquieu thought monarchies could be tyrannical since citizens’ interest in safety normally outweighs their need for social contentment (C. Montesquieu & Richter, 1977). Thus, Montesquieu asserted republics gain the normative benefit of monarchies while avoiding monarchical tyranny. The revolutionary framers (here referring to the framers of the Articles of Confederation who zealously held to revolutionary ideas) chose to incorporate Montesquieu’s beliefs in the Articles of Confederation, for a primary role of its central authority was to maintain a defense alliance between the several states.

Beyond appealing to reticence of military defense, Montesquieu, in large part, persuaded the revolutionary framers that small confederated republics maximized government’s connection to the public good, which he framed as an aggregation of localized interests (Bruno, 2010). Although the concept of the public good was revised later after Montesquieu’s republicanism lost its primacy, American revolutionaries adopted Montesquieu’s notion that the public good was “better felt, better known” and “lies nearer each citizen” when republics encompassed societies of naturally small scale (C. Montesquieu et al., 1989).

This, he argued, allowed authorities to experience local hardship themselves, and thus actualize the origin and solution of the impediments to public good. Revolutionaries further beheld his belief that this political “closeness” supported greater accountability, for there

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were less government layers to hide governmental failures (Bruno, 2010). On a national level, since the single universal interest of defense and all local interests were being satisfied, the holistic picture of the general public good seemed almost ideal.

Montesquieu’s république federative seemed to answer the considerable diversity of the states with adequate political flexibility to fulfill regional interests. Sectarian disparities between the states further belied centralization and served to preclude consideration of substantial centralization, and this friction continued to bubble up even after Montesquieuian republicanism was no longer heeded. Regional economies and localized political concerns, such as slavery, seemed impossible to politically generalize, as was necessary under any federalist unity.

Democracies contemporary with the Articles of Confederation gave ample evidence to early American political theoreticians that a confederated republic was the ceiling of functional democracy. San Marino, the Netherlands, Switzerland, Venice (Levy, 2006) and to some extent Poland and Denmark were the only extant democracies; this instigated a presumption, that since democracy had not naturally spread beyond the limits of république federative it most likely could not do so stably (Levy, 2006). Additionally solidifying Montesquieu’s claim before the Constitution, the Greek city-states’ flirtations with democracies seemed to fail to mature into large representative systems once their boarders were lengthened. If Germany and Italy could not centralize their states under strong authoritarian regimes, which were widely known as most effective at political consolidation, it seemed implausible the 13 states could under more volatile republican principles.

Yet perhaps the greatest ammunition for république federative historical arguments laid in ancient Rome, where broad-based republican authority had been attempted disastrously. The relatively swift withering of the republic into the Caesars correlated closely with Rome’s republican expansion; as such, Montesquieu

Spring 2013 and others perceived the failure of Roman republicanism as a twofold warning for 18th century republican ambitions (Levy, 2006). First, it led the revolutionary framers to believe that expanded republics do not structurally last due to inherent administrative and defense logistics. Second, it ominously suggested that such systems were vulnerable to usurpation stemming from over-centralization and megalomania, as Julius Caesar’s authoritarian reign and the ensuing centuries of dictatorship seemed to foreshadow. Hence, the revolutionary framers found history substantiated Montesquieu’s république federative concept.

However, the nation began to question the formerly unquestioned Montesquieuian république federative concept once the Union under the Articles of Confederation weakened. Although states discovered modest success in their independent republican structures, factionalism began to gouge a rift between the states; the lack of central executive power also proved fatal. Toward the close of the decade, consensus was building that Montesquieu’s thesis was needlessly limiting, and that America could not subsist without a realignment of the sovereignty structures. This is when the American political theory plunged into uncharted waters.

American Republicanism Turns to Hume As the confederated states became restless to expand and rule of law received declining respect – as Shays’ Rebellion illustrates, Montesquieu’s thesis on the république federative soon lost its persuasiveness. After living under a Montesquieuian style republic for a mere six years, political thought quickly sought new inspiration for a national regime. In the mid-1780s, American political theorists increasingly found their questions concerning where to take American republicanism answered by David Hume.

There were several evolutions in America’s political atmosphere that lifted the founder’s philosophical stricture on considering Hume’s republi-

can structure. First, as revolutionary fervor receded, American political leaders became less idealistic and more pragmatic about government (Smith, 2011). Second, the public’s fear of tyranny, although equally as strong as during the revolution, had shifted from fearing monarchial and minority tyrants to fearing faction and majority tyrants (Ibid). Third, states were already establishing tiered republican institutions, which created governance layers within each state republic that utilized representation from the county to the state level. Along with other forces, these internal developments set the political environment under which the founders became willing to deliberate on Hume’s concept of republicanism.

As the revolutionary fervor that deterred the revolutionary framers from considering Humean structure was calmed by time, the door opened for the constitutional framers (i.e., not the “revolutionary framers” but rather those who framed the Constitution) to contemplate democratic structures beyond that which Montesquieu offered. Naturally, Hume’s realist and empirical approach to structuring republics did not initially elicit support from American revolutionaries eager to establish a republican structure as idyllic and ideally democratic as possible. As Montesquieu gave credence to man’s virtue, his republican philosophy was more appealing to idealistically driven revolutions than Hume’s empiricism, which seemed stodgily skeptical of human virtue and pure rationalism. Although the Articles perhaps did achieve an idealistic respect for local interests, the Articles’ lack of coordinated rule of law on the national level rendered the government, as Hume predicted, impossibly pursuant of philosophies that were impractical (Werner, 1972).

After the Articles’ more idealistic republic had not produced the accord Montesquieu suggested it would, the founders became hesitant to again enshrine virtuous principles in government (Smith, 2011). By the late 1780s, the Constitutional framers’ constellation of political vision had become increasingly aligned with 5

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Hume’s prophetic republican thesis.

One founder pointedly illuminates this alignment: James Madison, America’s foremost disciple of Hume’s federalist-republican arrangement (Adair, 1957; Spencer, 2002). Renown as a most vociferous federalist and realist, Madison was greatly inspired by the Scottish Enlightenment’s embrace of empirical perception (Adair, 1957; Branson, 1979). Along with many of the Constitution’s founders, Madison was familiar with the era’s avant-garde realist, whose scientific political approach rejected political rationalism and upset Locke’s social contract. Madison observed with great interest Scotland’s schism with the Crown; the schism historically paralleled the American Revolution, and it was philosophically sped by empiricist, disparate with America’s largely idealist revolutionary framers. Hume was so decisive in the Scottish movement, modern historians of philosophy brand Scotland during this time as living in “the Age of Hume” (Werner, 1972). Madison’s warmth toward Hume’s federalist-republic was stoked further by Hume’s strong enthusiasm towards constitutional governments, in which, Hume argued, nations could best typify their empirical and operational principles (Branson, 1987).

This made Hume’s regime structures seem compatible with America’s avid constitutionalism.

Madison’s keen attention to Hume’s political ideas led Madison to apply Hume’s thesis as an integral guide to create the new American regime. Hume’s essay “Idea of a Perfect Commonwealth” stimulated Madison, where he extracted two central justifications for why America should embrace Hume’s federalist format (Hume, 1910). Madison perceived: that first, America’s condition was ideal for creating a federalist republic; and second, the federalist-republic solved for destructive political factionalism, a fundamental national impasse.

Madison convinced the framers America’s political conditions were unusually opportune to institute Hume’s federalist-republicanism. Hume wrote:

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If this controversy were fixed by the universal consent of the wise and learned, in some future age, an opportunity might be afforded of reducing the theory to practice, either by a dissolution of some old government, or by the combination of men to form a new one, in some distant part of the world? (Ibid.)

Hume’s suggested conditions for a federalist republic could not have been more similar to America’s situation in 1787: America was witnessing the dissolution of its revolutionary regime and conducting a gathering of minds to form a new constitution. Moreover, Hume’s suggestion of a “distant part of the world” heralded to Madison that the New World was a prime location to launch a Humean regime (Capaldi and Livingston, 1990). Hume explained novel republics needed time to solidify their governance mechanisms and internal civil unification in order to withstand later foreign pressures (Hume, 1910). The geographic isolation of the US from contemporary superpowers gave America some short term solace from constant foreign harassment. Hence, Madison pointedly argued that America’s conditions were ideally suited to build Hume’s republican regime.

Furthermore, Madison shrouded several of his arguments as Publius in Hume’s logic. Madison persuaded the framers Hume’s theory that a federalistrepublic would structurally allay a persistent national problem – the government’s internal factionalization.

Hume’s “Idea of a Perfect Commonwealth” equipped Madison with one of his most persuasive and prophetic justifications for an American federalist republic (Adair, 1957). In this essay, Hume casually disposed of Montesquieu’s limits on the republic, writing, The falsehood of the common opinion, that no large state could ever be modeled into a commonwealth, but that such a form of government can only take place in a city or small territory. Though it is more difficult to form a

Spring 2013 republican government in an extensive country than in a city; there is more facility, when once it is formed, of preserving it steady and uniform, without tumult and faction! … In a large government, which is modelled with masterly skill, there is compass and room enough to refine the democracy, from the lower people, who may be admitted into the first elections or first concoction of the commonwealth, to the higher magistrates, who direct all the movements. At the same time, the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest? (David Hume, 1910)

Comparing Madison’s Notes on the Confederacy and famed Federalist Paper 10 to Hume’s excerpt above illuminates the great degree to which Hume spurred Madison’s reasoning. In Federalist Paper 10 Madison wrote: The instability, injustice, and confusion introduced into the public councils, have…been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations… The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations. (Publius, 1787-1788)

He continued, observing that: first, larger republics embrace a proportionally diminished representation of factions; and second, the representatives will be chosen from a greater number of citizens, and thus the adopted representation will be less likely to have been selected by harmful minority factions (Ibid). Hume’s

speculation that federalist republics can absorb factions’ influence helped Madison defeat the Anti-Federalist’s Montesquieuian accusations (Flaumenhaft, 1992), which held vast republican governments are uncooperative and either stagnate or destabilize or both (Levy, 2006). Republics of scale, Hume argued, create salubrious and probable schisms; splintering the power locus amongst myriad interest blocs impairs radical or minority cabals’ ability to dominate national politics (David Hume, 1910). Supplemented with the Constitution’s separations of powers, the new federalist-republic sheltered the public against majority tyranny.

The Constitutions’ original removal of Senate elections from the general electorate was also a suggestion from Hume. Hume’s specific suggestion for a territory-based, more elite and executive Senate was embraced by Madison as an additional check against the “popular currents and tides” (D. Hume & Haakonssen, 1994); while not wholly attributable to Hume, Hume’s Senate construction certainly forwarded support for a indirectly elected upper house that could declare war and peace and approve executive appointees. As Madison argued, a federalist-republic structurally quelled factions through a multi-layered protection from radical, minority, and majority rule (Hamilton, Madison, & Jay, 1787). Yet Hume’s republican theory touched more framers than just James Madison.

Werner (1972) traces Hume’s interest in support from America’s political theorists to as early as 1768, when Hume said he “longed to see America in full revolt”. In 1775, Hume even declared himself “an American” in his principles, and he had expressed opposition to King George III (Werner, 1972). As a rationalist and empiricist, Hume enjoyed a philosophical camaraderie with American political theorists who elevated the equality of human reason and praised realism. This connection is distinguishable in his relationship with several towering figures of the Revolution.

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Thomas Paine’s concept of the origins of government perfectly mimicked that described in Hume’s “Of the Origins of Government”. Both identically claimed government arose out of moral virtue’s inability to govern humanity (Ibid). Paine also drew a degree of his anti-monarchial rhetoric verbatim from Hume.

Moreover, Franklin, whose political writings scarcely relied on Montesquieu (Stourzh, 1969), had an extensive personal relationship with Hume, in which Franklin visited Hume’s Edinburgh home frequently and the two maintained an extensive correspondence; Franklin believed Hume’s ideas were engendered in thought and reason (Werner, 1972). Hume’s political thought is easily visible in Hamilton’s writings, in which Hamilton called Hume “a [political] writer equally solid and ingenious” (Flaumenhaft, 1992). Hamilton directly incorporated arguments Hume made in “Of the Progress of the Arts and Sciences” in the apical Federalist Paper No. 85 (Ibid and Werner, 1972).

The constitutional framers’ experience governing a democracy further sprung their caution for philosophically fashioned structure. When the idealistic government outlined by the Articles of Confederation failed, the framers became more philosophically tempered, wearier of the pragmatist necessity in government. The framers found in federalism a pragmatic governance structure that did not host fractious movements. Because Hume’s republican construct did not attempt to incorporate higher law or morality, his republic was essentially more apt to unite factions and regions. Although still passionate about their state identities, the framers were provoked to reconsider the extent to which state interests were critically interconnected. It was realized that the United States was more sociologically compatible with Hume’s concepts of faction than with Montesquieu’s ideas of hegemonic enthusiasm for virtue.

Soon after ratification, observing the virtual anarchic and overtly violent French Revolution, the framers’ fear of a radically philosophical democracy

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deepened (Adair, 1951). That if the government was handed over to radical idealists, functional construction wasted either into a ‘moral’ chaos, subject to will of zealots like those of La Terreur, or a radicalized regime whose mechanisms were impractically abstract (Ibid). Although one could interpret America’s adoption of the unprecedented federalist-republican arrangement as a radical revolution itself, its novelty was less philosophical. Hume himself warned that political conflicts suffered from “imprudent vehemence”, which results from ideological stubbornness and obfuscates pursuits of clear objectives and rational timelines (Hume, 1987). However, the framers chose to overlook this aspect of Humean conservatism in favor of promoting a Humean republican federation.

Vestiges of Montesquieu’s Republicanism Although Hume’s concept of a republic was clearly victorious in displacing Montesquieu’s république federative in the Constitution, resurgences of Montesquieu’s influence persisted throughout later political thought. Anti-federalist arguments are visible at almost every point in America history, but only several prominent instances will be highlighted below.

States’ rights advocates, omnipresent in American history, are artifacts of Montesquieu’s thesis. Montesquieu gave South Carolina’s nullification arguments significant firepower, for South Carolina used (perhaps inadvertently) reasoning very parallel to Montesquieu’s logic that large republics fail to maintain legislative flexibility to meet region-specific needs. Interplay between Hume and Montesquieu’s positions during the Age of Jackson is easily found in arguments against national banks, where Jackson vigorously believed these national institutions were institutions of fiscal tyranny reigning down from the federal level. Later, states rights advocates assumed Montesquieu’s position on smaller constituencies to argue slavery should be dealt with on the state level.

The debate over slavery is a significant instance in

Spring 2013 which Hume’s arguments did not seem to overcome Montesquieu’s strong idea of regional rights until the Civil War. Perhaps the most dramatic reentrance of Montesquieu’s arguments into political thought was during the Second Revolution, where the South asserted strongly that the Union had failed due to impossible divides, which legislatively deadlocked the northern region against the South. The Civil War represents a tumultuous rejection of Hume’s republican theory.

The Second Revolution was eventually decided by military force; it is crucial to note, that unlike the framers’ debates over Hume and Montesquieu, the Civil War was not decided by pure political re-evaluation. Thus, although Hume’s thesis that large republics could remain undivided from faction might have miscalculated the impacts of divisions over slavery, Hume was still correct in predicting that a federalist government was more capable of maintaining internal military superiority.

Even after the Civil War’s end demonstrated the strong efficacy of Hume’s republican principles, followers of Montesquieu’s small republic continued to advocate more république federative-like construction. Montesquieu and Hume seemed to touch, if tacitly, Roosevelt’s New Nationalism and Wilson’s New Freedom. Later, ironically, conservatives began to embrace Montesquieu’s concepts of decentralization despite the conservative nature of Hume’s republican concepts. As the nation grew well beyond its size during ratification, factions grew more enormous, which represents a slight flaw in Hume’s prediction that factions would not proportionally grow when republics expanded. Indeed, modern factions that are arising from divergent political rivers are carving a political canyon among citizens that Hume did not completely prophesize. The nature of party politics along with other factors resulted in a consolidation of political platforms along party lines, which served to broaden and deepen political factionalism, equipping Montes-

quieuian believers with an empirically based rebuttal to Hume’s ideas on faction and federalist-republics.

Thus, several wavelengths of republican argument have used Montesquieu’s logic throughout American political development even until today.

Hume’s Enduring Federalist-Republican Victory The tug of war between states and federal authorities persists to this day. States still draw from Hume in arguing that federal authorities are ideologically distant and logistically out of touch with local interests, where federal laws lack regional elasticity. To this extent, the Tea Party movement has clearly favored Montesquieu’s principles; libertarian movements are similarly disillusioned with federal authority on the basis that is gratuitously encroaches on individual positive liberties. Yet despite these movements, centralized republicanism as Hume saw it held strong against these conservative factions. Indeed, these groups’ power to enact regime change is severely diminished by the necessity of broad support and inability to surmount national opposition. Although states regarded their distinct sovereignties as cornerstones legitimizing federal power, the implementation of Hume’s democratic ideas, particularly though Madison’s initiative, resulted in lasting permanent establishment of federalism.

In a globalizing world, America is uniting under its federalist structure even more than it has in the past. Highly centralized nations are highly competitive with American interests, whether economic, cultural, political, or combinations thereof. Federalist construction has given America the framework to compete with powerful external forces that have achieved robust military power and internal political and economic efficiency. Now, rarely do many argue that, for instance, California can compete with China or Florida can compete with South America. Because national unity is more crucial than ever to America’s success, Montesquieu’s adherents have virtually dis9

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appeared in their staunchest form. The globalist age is perhaps the apex realization of Hume’s assertion that large republics will foster stable and prosperous states. Hence, adherence to Hume’s style of republic is likely to strengthen as history unravels further.

Hume remains one of the great political theorists silently at play in American republican structure.

Although many modern political mechanics do not bear Hume’s name or directly reference his ideas, their influence is clear and widespread. Enshrined by the Constitution, America’s federalist republic has been unwaveringly resilient to internal divisions and foreign challenges. In the days to come, Montesquieu’s influence will only live on as periodic glimmers of belief in a decentralized, limited republic. In contrast, Hume’s republican theory will endure as a foundation to the American Republic far into posterity. ♦

Works Cited Adair, Douglass. “The Tenth Federalist Revisited.”

The William and Mary Quarterly 8, no. 1 (1951): 48-67.

Adair, Douglass. “‘That Politics May Be Reduced to a Science’: David Hume, James Madison, and the Tenth Federalist.” Huntington Library Quarterly 20, no. 4 (1957): 343-60.

Branson, Roy. “James Madison and the Scottish Enlightenment.” Journal of the History of Ideas 40, no. 2 (1979): 235-50.

Bruno, Jonathan. “Montesquieu and Early American Political Thought.” Harvard University, 2010.

Capaldi, N., and D. Livingston. Liberty in Hume’s History of England. Springer, 1990.

Cohen, I.B. Science and the Founding Fathers: Science in the Political Thought of Jefferson, Franklin, Adams and Madison. WW Norton & Company, 1995.

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Eidelberg, P. The Philosophy of the American Constitution: A Reinterpretation of the Intentions of the Founding Fathers. New York: Free Press 1968.

Flaumenhaft, H. The Effective Republic: Administration and Constitution in the Thought of Alexander Hamilton. Duke University Press, 1992.

Hamilton, Alexander, James Madison, and John Jay. “The Federalist Papers.” In Electronic Classics Series, edited by Jim Manis: Pennsylvania State University, 1787.

Hume, David. Of the Balance of Power. Essays, Moral, Political, and Literary. edited by E. F. Miller Indianapolis, IN: Liberty Fund, 1987.

1742.

Hume, David and K. Haakonssen. Hume: Political Essays. Cambridge University Press, 1994.

Hume, David. “An Equality Concerning Human Understanding: Chapter 8 and 11.” In The Harvard Classics, 91. New York: P.F. Collier & Son, 1910.

Levy, Jacob T. “Beyond Publius: Montesquieu, Liberal Republicanism and the Small-Republic Thesis.” History of Political Thought 27, no.

1 (// 2006): 50-90.

McGuire, R.A., and R.L. Ohsfeldt. “Economic Interests and the American Constitution: A Quantitative Rehabilitation of Charles A. Beard.” Journal of Economic History 44, no.

2 (1984): 509-19.

Montesquieu, C. . “Considerations on the Causes of the Greatness of the Romans and Their Decline.” Trans. David Lowelthal. Indianapolis, IN: Hackett (1999).

Montesquieu, C. , and M. Richter. The Political Theory of Montesquieu. Cambridge University Press, 1977.

Montesquieu, C., A.M. Cohler, B.C. Miller, and H.S. Stone. Montesquieu: The Spirit of the Laws.

Spring 2013 Cambridge University Press, 1989.

Pateman, C. Participation and Democratic Theory.

Cambridge University Press, 1975.

Publius. Federalist Papers. Vol. Number 10, New Uork1787-1788.

Smith, Steven. “The Federalists and Anti-Federalists.” Yale University, 2011.

Spencer, Mark G. “Hume and Madison on Faction.”

The William and Mary Quarterly 59, no. 4 (2002): 869-96.

Stourzh, G. Banjamin Franklin and American Foreign Policy. University of Chicago Press, 1969.

Werner, John M. “David Hume and America.” Journal of the History of Ideas 33, no. 3 (1972): 439-56.

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Let Loose the Drones of War: A Place for Drones in Just War Theory Margaret Bice Duke University Abstract The United States has been the subject of much ire both domestically and abroad for using drone strikes for surveillance and targeted killing, both in Operations Iraqi Freedom and Enduring Freedom, and in the airspace of countries outside the combat theatre.

Drones have allowed for a rapid response to threats halfway around the world and are utilized daily for surveillance in hostile regions. Detractors believe that the ease of deployability and lack of risk to a human pilot will create an excessively ‘easy’ path to war – a war that may violate jus in bello and jus ad bellum. There is much anxiety over whether these technologically superior weapons dehumanize killing, alienate the populations they are used against, or promote American safety at disproportionate cost to foreign populations. The evidence available on the performance and capabilities of drones, however, shows that they are efficient, precise, and able to sacrifice the mission and the life of the drone for the good of civilian populations, and that while in some situations there might be diplomatic and tactical disadvantages to using them, these considerations do not fall under the purview of Just War. It is shown that drones as they are used now – under the direct control of a human operator acting under proper authority – certainly adhere to Just War principles and should not be excluded from armed conflicts in the future.

Introduction My interest in the usage of drones in war stems from a background in Political Theory combined with a more recent interest in the changing nature of armed conflict. As an increasingly connected world observes the conduct of the United States’ military engagements in the Middle East, serious concerns have been raised over the use of drones. Americans and foreigners alike worry if they are humane, if their use is ethical, and what we can expect their role to be in future wars - which we can expect to continue being asymmetric in nature.

I seek to fill a gap in the literature created by a theory that has, at least in perception, failed to keep up with the shifting of world war from standing armies and pitched battles to something now defined as “armed conflict.” The public debate has largely been relegated to op-eds in newspapers and blogs, while the decisive tomes regarding ethical and theoretical

issues in war remain those that were written decades ago. There has been much discussion over whether employing the ‘outdated’ tradition of Just War is possible, or even advisable. The rapid development of weaponry has indeed far outpaced any significant revisions to the Just War tradition, but this alone is not cause for concern.

Through examining the capabilities of drones and the tenets of Just War Theory, I hope to show that while the language and the books of the tradition may be dated, the ethical base remains just as applicable— and it allows for the deployment of drones.

Background On Drones

While the phrase “drone” brings to mind a technologically advanced, sleek, flying machine, reviewing the other terms they are known as provides a more accurate description of their purpose and histo13

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ry. For the purposes of this paper, the more commonly used “drone” will be used as an all-encompassing means of examining unmanned aerial vehicles, armed or not, used in the service of warfighting. In the defense community, however, drones are more commonly referred to as ‘unmanned aerial vehicles’ (UAVs) or ‘unmanned combat aerial vehicles’ (UCAVs). These names provide a better starting point for tracing the history of indirectly operated aerial weaponry—and it is a long history.

UAVs were initially used in the American Civil War as both the Union and Confederacy launched explosive-laden balloons across enemy lines. In theory, the balloon would land on a munitions depot and explode. In reality, these balloons were often tossed about by the wind, and rendered largely haphazard, ineffective, and dangerous to both sides.1

speed—all while the pilot of the “drone” was eight miles away. This was not yet meant to be the era of the drones, as Project Option faced significant resistance from the United States Navy and further development proved to be prohibitively expensive.

While drones as we know them have only recently become an object of national discussion, they developed into their current form some time during the 1960s. These unarmed vehicles were used primarily for reconnaissance, with one of the first known uses occurring after a U-2 spy plane piloted by Gary Powers was famously lost to the Russians. This model of drone, known as the ‘Firebee’, was deployed heavily during the same decade over China.

Vietnam saw the first deployment of UCAVs in combat roles. It also marked the first time drones were rolled out for large-scale action.5 In particular,

This success occurred despite the Aaron Ward performing evasive maneuvers and running at almost full

UAV usage in the 21st century has come to include “intelligence, surveillance and reconnaissance (ISR),

The period of peace before WWII resulted in an experimental program called Operation Aphrodite.

The intent was to use “manned aircraft in an unmanned role,” but this idea faltered as American forces lacked the technology to launch and control the aircraft.2 The idea, had it succeeded, would have had a human pilot navigate to the correct altitude before bailing out and passing control to the ground.3

Nevertheless, success was not far off. Immediately after the attacks on Pearl Harbor, a top-secret project known as “Project Option” was re-prioritized and was soon producing results. Eventually, a torpedo plane was successfully converted into a drone and struck with extreme accuracy against the Aaron Ward, an American Naval destroyer, during a war game.4

1 Unmanned Aerial Vehicles -- Benefits to the Warfighter., 2006. Print.

2 Jim Garamone. “From the U.S. Civil War to Afghanistan: a short history of

UAVs.” Army Communicator 27.2 (2002)63 Print.

3 It was on a mission like this that President Kennedy’s brother, LT Joseph Ken-

nedy ,died.

4 Nick T. Spark. “Unmanned Precision Weapons Aren’t New.” U.S.Naval Institute Proceedings 131.2 (2005)66-71 Print.

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they were used to “gather images and electronic and communications intelligence…they were also used for SEAD [Suppression of Enemy Air Defenses].”6 Unfortunately, these precursors to the commonly held conception of what a ‘drone’ is were relatively unsuccessful due to a prior lack of focus on the development of precision radio controls. The issue of accuracy had not been pressed earlier, as in the early stages drones were initially only meant to provide “low cost, but realistic, target practice for anti-aircraft gunners.”7 However, the time and resources devoted to drone development and utilization has increased sharply in the post-9/11 era. The United States military projects that by 2015, 30% of their combat aircraft and ground vehicles will be remotely controlled.8

5 “As a whole, Firebees flew more than 3,400 sorties during the Vietnam War” – Garamone, 64 6 Ian Poll. “The Evolving Capability of UAV Systems.” NATO’s Nations & Partners for Peace 52.2 (2007)130 - 132 Print.

7 Ibid., 131 8 Sullins J.P. “RoboWarfare: Can robots be more ethical than humans on

the battlefield?” Ethics Inf.Technol.Ethics and Information Technology 12.3 (2010)263 /z-wcorg/. Web.

Spring 2013 close air support, interdiction, suppression of enemy air defenses, radio relay, observation, border security and maritime surveillance.”9 Despite the combat role of the previously mentioned UAVs, due to technological and financial restraints, UAVs were not able to support any operations below battalion level until the mid-1980s.10 The United States Department of Defense has come to classify modern drones—here labeled UAVs —as “a powered aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or nonlethal payload.”11 The United States Navy (USN) and Marine Corps (USMC) have operated the Pioneer UAV since the mid-1980s with great success.

During Operation Desert Storm, the battleship USS Missouri used a Pioneer to provide extended visuals and destroy the defenses of Faylaka Island. Iraqi troops later surrendered to a Pioneer flown low over the horizon of the island, signaling the area was being targeted for another barrage, by waving handkerchiefs and bedsheets.12 The most recent decades have resulted in dramatic technological advances as the consumer market continuously develops technologies adaptable to the aerospace industry.13 Everything from the refinement of GPS, increases in battery life, superior optics and the exponentially decreasing size of computing hard9 ARMY WAR COLL CARLISLE BARRACKS PA and Richard P. Schwing. Unmanned Aerial Vehicles - Revolutionary Tools in War and Peace., 2007. Print.

10 MARINE CORPS COMMAND AND STAFF COLL QUANTICO VA and Yadali.

11 Unmanned aerial vehicles implications for military operations, 2000, Center for Strategy and Technology, Air War College, Air University.

12 Jim Garamone. “From the U.S. Civil War to Afghanistan: a short history

of UAVs.” Army Communicator 27.2 (2002) 64 Print.

13 “The mobile phone boom has driven communications, display and energy

storage technology. The personal computer market has driven processing power and data storage capacity to ever increasing levels, whilst power consumption, size and cost have been dramatically reduced. The video games market and the Internet have driven developments in information processing, imaging, simulation, encryption, and data management. Arguably, the most significant development of all has been the development of all has been the establishment of the global positioning system (GPS).” Poll, 131

ware have been of service to the drone’s development.

In the past two decades, the United States has primarily employed two particular UCAV models: the Predator and the Reaper. The Predator has a ceiling of 25,000 feet, flies at a rate of up to 82 miles per hour, and has a radius of 500 miles. It can stay airborne as long as 24 hours and was first armed with two Hellfire laser-guided missiles in 2001.14 Since American engagements in the Middle East began, the Predator has experienced widespread media coverage. The Reaper is simply a more attack-focused, powerful version of the Predator—in the words of the United States Air Force (USAF) it is a “hunter-killer” aircraft, meaning “the attack mission takes precedence over the reconnaissance mission.”15

Establishing the “ancestry” and development of drones is crucial to the argument presented later in this paper: for all the excitement and publicity drones have received, unmanned aerial vehicles are not so new and unmanageable, nor are they so foreign and contradictory to the Just War Tradition. Additionally, the usage of UAVs/UCAVs by the United States and the rest of the world appears to be on the rise. In the past decade, the United States has significantly added to its drone fleet; in 2001, the drone fleet totaled 167, which increased significantly to over 5,500 drones by 2009.16 This marks an increase of almost 3200 percent. Additionally, drone combat deployment in Pakistan has seen an increase from 33 in 2008 under President Bush to 112 in 2010 under President Obama.17 The United States does not hold a monopoly on drone usage either—its allies and enemies have engaged

14 ARMY WAR COLL CARLISLE BARRACKS PA and Richard P. Schwing. Unmanned Aerial Vehicles - Revolutionary Tools in War and Peace. 2007. Print.

15 ARMY WAR COLL CARLISLE BARRACKS PA and Schwing.

16 Daniel Brunstetter and Megan Braun. “The Implications of Drones on the

Just War Tradition.” Ethics & International Affairs 25.03 (2011)341Web.

17 New America Foundation, “The Year of the Drone,” counterterrorism. newamerica.net/drones; accessed December 13, 2012. The New America Foundation “draws only on accounts from reliable media organizations with deep reporting capabilities in Pakistan, including the New York Times, Washington Post and Wall Street Journal…along with the AP, Reuters, CNN and the BBC” 15

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drones in both surveillance and combat capacities.18 19 In other words, even after American combat operations wind down in the Middle East, UAVs/ UCAVs will remain a dominant force in armed conflict for many major militaries. From China to Iran, Israel and Turkey in the Middle East, countries in every corner of the world have adopted drones. Many in possession of combat drones are at odds with each other and located in geopolitically important and unstable regions of the world. It would be naïve to ignore the signs of conflict on the horizon and to assume that drones will have no role in it.

On Just War Theory We cannot argue that drones adhere to the Just War Theory without referencing the tradition’s evolution.

The purpose of this section, in addition to serving as a brief introduction to Just War, is to reconcile what drones are capable of with what the tradition allows.

Additionally, it allows for Just War to prove its durability and continued relevance.

The Just War Theory, as practiced in the West, has origins dating back to the medieval period as secular and religious leaders alike fought wars under the watchful eye of the vastly influential Catholic Church.

Augustine first used the phrase ‘just war’ in his work City of God, in which he devotes a small section to cases in which Christians may kill without being guilty of murder. This exception could be granted for two reasons: the justification of a general law, “or by a special commission granted for a time to some individual.”20 In the latter case, he who commits the

act is “but the sword in the hand of him who uses it” and “not himself responsible for the death he deals.”21 18 China, France, the United Kingdom, Italy, Iran, Israel, Russia, South Korea, and Turkey have all utilized drones in some military capacity 19 United States, the United Kingdom, and Israel – along with some non-state actors, including Hezbollah 20 Saint Augustine Bishop of Hippo. The city of God; New York, Modern Library 1950], 1950. Print.

21 Ibid.

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While this resonates greatly with the contemporary laying of responsibility on the body responsible for waging war, the Augustinian justification is rooted in the religious rather than the secular. Augustine justifies waging war when it is “in conformity with His laws…represented in the public justice or the wisdom of the government.”22

Thomas Aquinas later provided three very familiar conditions in his Summa Theologica for a conflict to be classified as a just war: 1. Authority: The authority to wage war belongs to the authority of the “prince” and not the individual, and it is the duty of the prince to defend the state against foreign enemies.

2. Just Cause: Those being attacked must deserve the attack.

3. Right Intention: The intention of those fighting should be to bring about good and/or avoid evil.23 These Aquinian guidelines have remained relatively unchanged. While Just War has become a widely accepted standard in present-day Western political thought, the larger concept of laws pertaining to fair war began with separate, but markedly similar, roots in Islamic culture. Comparing the inceptions of Western Just War and Islamic law of war is of particular significance to a discussion on the morality of drones.

At the time of this writing, the highest-profile usage of drones remains that of American forces on and off the demarcated battlefield in predominantly Muslim areas. Additionally, while the Just War Theory seeks to embody as universal of a moral code as political and religious lines will allow, becoming a “common discourse that rises above particular differences to a 22 Ibid.

23 ST, II-II, Q. 3

Spring 2013 higher level of shared understanding,”24 the differing ideas of authority and just cause between Western and Islamic traditions have been a source of friction between the two.

The biggest division between Western and Islamic justification for war is that while “the idea of holy war never enjoyed a secure place in Western moral doctrine on war and statecraft,” Islamic culture “finds in the Western concept of the secular state, the very political institution which makes holy war unthinkable, an offense to God’s will for the right ordering of human community.”25 While it is not the intent of this paper to compare holy war and Just War in their attitudes towards drone usage, a number of the questions raised by the discrepancies between the two are worth considering.

Is there a best practice in navigating and establishing rules of war between the secular West and the theological Middle East? In particular, how does this distinction complicate the idea of authority and just cause?

What are the roles of geopolitical lines when waging war against a stateless enemy supported by more than one state?

The purpose of raising these questions is to further illustrate the continuing importance of Just War: it does not provide all the answers, but remains the best method for judging and mediating what could otherwise become an “unregulated” future for the conduct of war in a world where religion and morality vary from state to state, and often within them as well.

Today, a “just war” is secular, state-grounded, and fought adhering to jus ad bellum, jus in bello, and, of increasing importance in the wake of American engagements, jus post bellum.26 27 28 24 James Turner Johnson. The holy war idea in Western and Islamic traditions. University Park, Pa.: Pennsylvania State University Press, 1997. Print.

25 Ibid.

26 jus ad bellum, Latin for “right to war” 27 jus in bello, Latin for “the law in waging war” 28 just post bellum, Latin for “justice after war”

As the ability and right to decide to go to war (and how to conduct it once begun) is unlikely to be handled by any entity other than very human government personnel for the foreseeable future, we will turn our attention to those aspects in which drones have a stake.

Jus in Bello Definitions of jus in bello commonly contain five directives for combatant action, but for the purposes of this paper we will focus primarily on two tenets that have the most significant ramifications for drone usage. These are discrimination and proportionality.

Discrimination is a matter of differentiating between combatants and protected groups, such as civilians, wounded soldiers, and medical personnel.

Under Just War Theory, targeting noncombatants is expressly banned. Beyond the theoretical tenets, noncombatant protection has been codified into international humanitarian law in the form of a 1977 amendment to the Geneva Conventions known as Protocol I as well as in the Rome Statute of the International Criminal Court.29 30 31 Though highly contentious, a caveat does exist to these protections: that of “double effect.”

Double effect addresses the dangers that noncombatants face “not because anyone sets out to attack them, but only because of their proximity to a battle that is being fought against someone else.”32 It

attempts to address the disconnect between absolute non-combatant protection and the unavoidably vola29 In this case, defined as explicitly seeking to do harm to a noncombatant, and not inflicted as result of collateral damage.

30 Article 51: Protection of the Civilian Population states that the “civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

31 Article 8(2)(b) defines “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” as a war crime. Full text found at http://untreaty.un.org/cod/icc/ statute/romefra.htm 32 Michael Walzer. Just and unjust wars : a moral argument with historical illustrations. New York; London: BasicBooks; Perseus Running distributor], 2006. Web.

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tile, violent nature of warfare by permitting military action that results in non-combatant deaths provided certain conditions are met, listed below: 1. The act is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war.

2. The direct effect is morally acceptable – the destruction of military supplies, for example, or the killing of enemy soldiers.

3. The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends.

4. The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under Sidgwick’s proportionality rule.33 34

In short, “double effect” is meant to provide leeway for troops carrying out orders on the battlefield by accepting that sometimes, despite every effort not to, and despite the intent not to, noncombatants will become part of the collateral damage of armed conflict. A remarkably utilitarian approach, it provides a relatively clear-cut means of judging actions carried out on the very unclear field of battle.

Proportionality, the second primary component of jus in bello and a requirement for “double effect,” dictates what level of force is acceptable against a target. For example, a massive air campaign to take out an enemy sniper would likely result in excess destruction and death beyond what is typically expected of “collateral damage.” A precision air strike to take out an enemy bunker engaged in combat, however, would likely meet this requirement. The International Criminal Court defines an un-proportional attack as one that “is launched on a military objective in the knowledge that the incidental civilian injuries

would be clearly excessive in relation to the anticipated military advantage.”33 We will explore the idea

of pre-emptive strikes as proportional measures in the section examining the capabilities of drones to better observe proportionality.34 The last three principles of jus in bello will be addressed briefly and in their relationship to drone usage. Military necessity requires that an attack be on a military objective and be in clear service to a military victory. It is meant to limit wanton death and destruction. The argument for drones has largely been based on the idea that they are more precise than conventional weaponry and result in less non-combatant deaths. This claim will be examined.

Fair treatment of prisoners of war is difficult, if not impossible, to apply to a situation where drones are used. The mission of a drone has traditionally been to conduct reconnaissance or kill a target: there has been no taking of prisoners. The Department of Justice’s recent white paper on targeted killings, however, includes a single sentence stating that “under this framework, the United States would also be required to accept a surrender if it were feasible to do so.”35

While the thought of a combatant surrendering to a drone with no “human” troops in sight is a peculiar one, the allowance for such a scenario is important. As such, drones are neutral on this point.

Lastly, the prohibition on malum in se means armed forces cannot use weapons or tactics that are excessively cruel or uncontrollable. This could include anything from what happened during the Rape of Nanking to the usage of chemical, biological, radioactive and nuclear (CBRN) weapons.36 For example,

unleashing a deadly virus or illness on a population 33 United Nations. Preparatory Commission for the International Criminal Court. Rome Statute of the International Criminal Court adopted at Rome on 17 July 1998. [New York]: United Nations, 1999. Print.

34 Increased Adherence to Proportionality, PG 27 35 Department of Justice, Lawfulness of a Lethal Operation Directed Against

a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force2013, (Washington, D.C.: 9.

36 Malum in se, Latin for “evil in itself ”

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Spring 2013 is uncontrollable, unpredictable, and potentially catastrophic. There is no way of protecting noncombatants from it, and a high probability that it could extend beyond the borders of battlefields. Many of the crueler weapons that could be released in combat are CBRNs: they are markedly horrific, painful, and dehumanizing, with effects that could last long after the war is over—if the afflicted survives, that is.

In regards to avoiding uncontrollable, cruel weapons, drones are machines under constant human control that simply carry and fire conventional weaponry.

Jus Post Bellum Just Post Bellum is concerned with what happens after the war is waged. Its tenets are relatively new, but focus on leaving the aggressor state capable of returning to the activities of daily life without excessive or cruel reparations. It is interesting that the perception by the populations of the countries we are engaged in has come to be included in this thinking. This interest comes from a belief that, as in the case of the Middle East, we cannot effectively cease hostilities and focus on nation building if the native population remains, or perceives us as, hostile. Unfortunately, studies conducted in 9 out of 10 Pakistanis living in the Federally Administered Tribal areas oppose American drone use.37 We must be careful in our handling of Just War. It has a long history as the moral standard by which we judge those who would undertake the effort of armed conflict, but in that long history, much has changed about how armed conflict is fought. When attempting to scrutinize conflicts under the Just War Theory, it is essential to remain cognizant of the philosophical roots of the tradition and abide by the spirit rather than by the letter—a difficulty faced when examining most any doctrine.

37 Public opinion in Pakistan’s tribal regions, 2010, New America Founda-

tion : Terror Free Tomorrow.

Old Theory, New War Having introduced an ancient theory for judging wars alongside a new method for fighting them, it is necessary to establish why Just War remains a practical, reasonable way of thinking about war. In an era where armed conflict has shifted from men fighting each other to fighting via proxy, the applicability of a theory with its roots requires a more in-depth examination.

Whatever the conditions surrounding the formation of Just War, its guidelines remain easily adaptable; it is possibly one of the few culturally transcendent sets of mores regulating human behavior. Historically, monarchies, democracies, and other systems of government alike have observed just war’s principles, whether through coercion or the states own internal moral compass.

A helpful means of explaining the continuing relevance and importance of the continued use of this ‘old’ theory is the largely analogous debate over the American constitution. To address moral and ethical quandaries unique to the 21st century, we look back to a document written in the 18th century. Some believe the Constitution to be a “living document” while others perceive it is as largely static—it is also often reduced to a debate over the spirit versus the letter of the text. However, neither side has expressed any true desire to throw it out and start over.38

The lesson provided is that ideas and institutions can endure well past the era of their creation if their purpose remains relevant and their spirit translatable. The continued employment of Just War meets these conditions. While the manner in which war has been fought has changed, the concerns over and nature of war remain largely the same. Drones, just like foot soldiers, are expected to be deployed under the proper conditions, respect noncombatant immunity, and ultimately operate under the idea that war should 38 There have indeed been columnists and pundits who have called for a “new Constitution,” but here we refer to the mainstream of the American electorate and elected officials.

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be a transient state of being.

Moreover, Just War serves as a means of moderating state action by guarding both the ends and the means of armed engagements. To illustrate, a theoretical, but realistic scenario: reconciling policy recommendations regarding drones from both the Departments of Defense and State. The former’s concern is with neutralizing threats and exercising hard power; the latter’s concern is with exercising diplomacy and soft power. While these goals are not irreconcilable, they can still prove difficult to reconcile. In the case of drone strikes, the Department of Defense might perceive it as a cost-effective, tactically advantageous, ‘life-saving’ method while the Department of State sees a diplomatic nightmare and a sure way to alienate foreign nationals in combat zones. How else, then, is a state to determine the means and ends to carry out a just war? Just War provides a means of tempering military ends with humanitarian compassion.

A Place for Drones in the Just War Tradition Improved Discrimination

As established earlier, one of the underpinnings of the Just War Theory is the concept of discrimination: the active avoidance knowingly putting non-combatants in danger. There is significant evidence that drones are able to do just this, perhaps more effectively than soldiers in a conventional war. The Israeli government, which invests significantly in drone research, has developed a Spike Extended Range precision missile that can be equipped to UCAVs. This missile goes beyond the traditional “point and shoot” and allows the operator to “update the missile, aim, point, or steer the missile off course if the intended target turns out to be a civilian.”39 Conventional weap-

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While our ethical musings on drones are rooted largely in theory, there are numbers that support the utilization of UAVs and UCAVs. A study on UAV attacks carried out in Pakistan reveals that the strikes “were far better at noncombatant discrimination than all the other methods used for engaging Taliban fighters in the region.”40 UAV strikes resulted in a 17:1 ratio of intended targets to civilian deaths, compared to nearly 3:1 for members of the Pakistani Army. In simpler terms, this means that, on average, drones terminate 17 intended targets for every one unintentional civilian death. Unfortunately, for the Pakistani Army this is reduced to three intended deaths for everyone one civilian death. The ratio for armed conflicts worldwide in 2000 was 0.125 noncombatants to 1 militant. Additionally, as the technology used by drones improves, the number of noncombatant deaths has decreased dramatically. The Human Rights Watch praised the cameras and infrared capabilities that allowed drone operators to “tell the difference between fighters and others…and to hold fire if that determination could not be made.”41

The New America Foundation, which compiles data about drone strikes from mainstream media created the table42 above on drone-attack related deaths.

The trend, as best we can tell, shows that the targeting capabilities of drones have brought about a decline in the number of civilian and ‘unknown’ deaths. Despite the increased utilization of drones under the Obama administration, as of mid-2012, the “estimated civilian death rate is at or close to zero.”43 We can attribute this decline in civilian and unknown deaths to improved capabilities and perhaps improved

onry utilized by soldiers on the ground lacks this capability; once a bullet is shot it cannot be undone or modified.

tion. Keeping up with the drones : is just war theory obsolete?. Carlisle Barracks, PA: U.S. Army War College, 2010. /z-wcorg/. Web.

39 Bradley Jay Strawser. “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.” Journal of Military Ethics 9.4 (2010)351Web.

CNN, 14 December 2012 2012.

40 Ibid., 352 41 Mary-Kate Leahy and Army War College (U.S.). Dept. of Distance Educa42 Image source: counterterrorism.newamerica.net/drones 43 Civilian Casualties Plummet in Drone Strikes<br />, 13 July 2012 2012,

Spring 2013

oversight, for the reason that despite an exponential increase in drone strikes under the Obama administration, we have not seen an increase in noncombatant deaths.44 Increased Adherence to Proportionality The United States has complicated an already complicated situation with its use of drone strikes by both the armed forces and the Central Intelligence Agency, entangling a just cause with one that is less clear.

From American citizens to the United Nations, there are concerns over how and why a non-military force is carrying out targeted killings. Why an intelligence agency taking on a paramilitary role and executing enemy combatants via targeted assassinations? What are the rules surrounding these operations? How are these decisions made and carried out? Ultimately, who can be held responsible?

44 The Bureau of Investigative Journalism reports that since 2004, 366 drone strikes have taken place in Pakistan – 314 during President Obama’s time in office alone. This dramatic upswing in the frequency of drone strikes does not bring with it matching noncombatant casualties. For example, of the 10 strikes that have taken place in 2013, 37 – 75 militants were killed compared to an estimated 0 to 4 civilians.

However, since the purpose of this paper is to justify drone usage in armed conflict, the critiques leveled against CIA-operated drones will be addressed as they pertain to the usage of drones in general. Despite the CIA’s status as an intelligence agency and not a branch of the military, many of its operations in the Middle East have proven almost indistinguishable from military operations. From the November 4, 2002 killing of six al-Qa’ida operatives in Yemen believed to have had a role in the bombing of the USS Cole to an a failed attempt to kill Osama bin Laden in Kabul a year before, the CIA has had a role in taking out enemy combatants.45 Though the CIA maintains secrecy

around almost every aspect of its drone usage, in 2009 then-CIA director Leon Panetta stated “in terms of that particular area, it is very precise and is very limited in terms of collateral damage,” and that further, “it’s the only game in town in terms of confronting or trying

45 Additional examples include: A May 2002 strike against Gulbuddin Hekmatyar, “an Afghani warlord who joined forces with the Taliban against the U.S.-allied government;” a May 2005 strike against in Pakistan against a highranking al-Qa’ida leader. Though the information surrounding these operations is classified, a survey of media outlets places the number of fatalities from drone strikes in the low thousands.

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to disrupt the al Qaeda leadership.”46 The little that is made public about CIA drone usage suggests that the agency may, despite not being a military branch, be attempting to follow the laws of war.

For this purpose we turn to the Department of Justice’s (DOJ) recent memo, the primary directive of which was to justify the targeted killing of United States citizens, but whose language and scope includes justifications for drone usage.47 As such, while the memo focuses on justifying the use of force on American citizens, it provides us with insight into what the defense community at large under the Obama administration views as “national self defense” and the conditions under which lethal operations are allowed.

The crux of the DOJ’s argument is that the President reserves the right to respond to an “imminent threat,” arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict…under international law.48

The memo fluctuates between defining the threat as members of al-Qa’ida or simply an “enemy force” and struggles to present a consistent message. The legal justification for targeted killings, however, is afforded more clarity. Primarily, it presents the three circumstances for conducting a targeted killing while using international precedence as a means of justifying current operations. The three circumstances are as follows: 46 , May 18 2009, CNN, February 12 2013 <w>.

47 Specifically, by providing a “legal framework for considering the circum-

stances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen”

48 Department of Justice, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force2013, (Washington, D.C.: 1.)

22

1. Where informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States 2. Where a capture operation would be infeasible – and where those conducting the operation continue to monitor whether capture becomes feasible 3. Where such an operation would be conducted consistent with applicable law of war principles49 We will focus primarily on those arguments that pertain to Just War. Imminence as justification is explained by the “possibility of reducing collateral damage.” Given the increased role of non-state actors and guerrilla tactics in armed conflict, this could mean neutralizing a threat that might otherwise use civilians as cover and as targets. While “imminence” is—perhaps purposefully—vaguely defined, reducing collateral damage adheres to the discrimination portion of Just War. The second clause, regarding cases where capture operations are infeasible, finds its relevancy in its stipulation that capture must not be excluded. This could lend itself to the jus in bello concepts of military necessity, proportionality, and distinction. The choice to kill rather than capture only when the latter is not possible embodies military necessity—that is, to use minimum force and mitigate potential collateral damage. It may follow proportionality, if, for example, the targeted person is suspected of a crime that might not warrant death. It may also assist distinction in a more nuanced way, akin to the prevention of murder as seen in Spielberg’s Minority Report—that is, by neutralizing a threat before deadly action can be carried out, innocent lives may be saved.

The last clause, that “any such lethal opera49 Ibid., 6

Spring 2013 tion…would comply with the four fundamental lawsof-war: necessity, distinction, proportionality, and humanity” appears to be relatively straightforward.50 As addressed by the first clause, such lethal operations would only occur out of necessity, while the second clause addresses distinction and proportionality. Humanity, as explained by the DOJ, is the “avoidance of unnecessary suffering”—an accurate, if curt, way of looking at being killed rather than captured and interrogated.

As for precedent in international law, which as shown in earlier references is often an extension or affirmation of just war principles, the memo believes a lethal operation would be legal if conducted either with the “consent of the host nation’s government or after determination that the host nation is unwilling or unable to suppress the threat posed by the individual targeted.”51 This idea, itself flimsy, is bolstered by an

American court case, Hamdan v. Rumsfeld, which determined that “a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is in an armed conflict ‘not of an international character’ because it is not a clash between nations.”52 53 As such, the Department of Justice has concluded “any U.S. operation would be part of this non-international armed conflict, even if it was to take place away from the zone of active hostilities.”54

While the active involvement in the killing of combatants by an intelligence agency is itself problematic and troubling to many, from American citizens to the United Nations, if we look beyond the entity carrying them to the doctrine guiding them, the CIA might not be so far off base. Certainly, while the idea of a civilian clandestine agent undertaking targeted 50 Ibid., 8 51 Ibid., 2 52 Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006) 53 Department of Justice, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force 2013, (Washington, D.C.: 3.

54 Ibid., 3

strikes on hostile forces piques our interest, examining as best we can how their actions are regulated affords a more practical understanding of the means by which the United States conducts war: because like it or not, the CIA has had a hand in warfare. We should then, at the very least, be aware of the ways in which the United States conducts its wars, CIA included.

In remarks earlier this year to the Woodrow Wilson International Center for Scholars, John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, said of targeted strikes undertaken by drones: Targeted strikes conform to the principle of proportionality—the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

If approached differently, one of the common criticisms of the ‘targeted killings’ carried out by drone strikes can instead be seen as a positive. While there are fears that drones make waging war too fast and easy, Walzer himself made distinctions between “measures short of war” and “actual warfare,” in which missile strikes are seen as just short of “full” war.55 Walzer praises these measures because they lack the “unpredictable and often catastrophic consequences” of complete war.56 Thus, in engaging in “measures short of war” is preferable to a widespread, unpredictable “actual” war.

The case for drones as a more proportional means of war, including “short war,” is not a difficult 55 Walzer.

56 Ibid 23

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one to make. Walzer states “that measures short of war are preferable to war itself whenever they hold out the hope of similar or nearly similar effectiveness,” and in the case of taking out high-value leaders of hostile forces, a drone strike is far more efficient than troop mobilization while achieving the same purpose. Given the primary nature of American military engagements abroad—that is, against non-state actors—it is also likely that many of these “short wars” would be pre-emptive in nature. This is supported by the “imminent” clause found in the DOJ white paper along with our continued pursuit of combatants who may only be in the planning stages of an attack.

Walzer, however, permits for this to be enough, drawing the “line between legitimate and illegitimate first strikes…not at the point of imminent attack but at the point of sufficient threat.”57 He qualifies sufficient

threat as “a manifest threat to injure, a degree of active participation that makes the intent a positive danger, and a general situation in which waiting, or doing anything other than fighting, greatly magnifies the risk.”58 Further, Walzer allows that “states can rightfully defend themselves against violence that is imminent but not actual; they can fire the first shots if they know themselves about to be attacked.”59

If the concern with drones is that they lower the threshold—yes, perhaps in a certain manner they do. But this in itself is not a negative outcome. By allowing for targeted, efficient drone strikes, the “uncontrollable and often catastrophic consequences of war” can be mitigated.

Response to Common Critiques Concerns about drone usage can be found in all three areas of the Just War Theory, from how they affect the process of starting a war, to moral hazards in war, to final concerns of how they will impact the rebuild57 Ibid., 81 58 Ibid 59 Ibid 24

ing of a nation after war. Beginning with jus ad bellum, we commonly see concerns being expressed that drones allow for a lower threshold to start a war.60 Drones bear the perception that they “blur the line between war and peace, making war more comfortable and less immediate”61 because their operators are far removed from the battlefield. In the case of drone strikes in the Middle East, their operators are found in Nevada. There is concern for the psychological health of servicemembers who kill targets thousands of miles via camera before heading home.62 The ethical concern raised here is for the drone operator: will killing on a screen come to seem just like a video game? Will killing become easier from a distance? Are operators truly able to leave ‘work’ behind when they go home?

These concerns stem from a well-meaning perspective, but forget the long-standing nature of war. Killing from a distance is not new. Field artillery and piloted bombers allow significant distance between the servicemember and their target. As Schulzke points out, “a person launching a missile…lacks visual contact with the enemy and is therefore as psychologically distant from the battlefield as the drone pilot.” Concerns regarding the well being of the servicemember would then be better served knowing that they are physically removed from danger while having immediate access to on-base support and counseling services should they require it. Additionally, this physical distance should, in theory, contribute to less hasty decisions by the pilot; the weight of a life-ordeath decision is not bearing down on them. As to the larger concern of the impact on the ethical character of drone operators: drones have cameras and their pilots are subject to oversight from a commander. It is much 60 Johansson L. “Is it morally right to use Unmanned Aerial Vehicles (UAVs) in war?” Philos.Technol.Philosophy and Technology 24.3 (2011)279-291 Print. ; 61 Schulzke M. “Robots as weapons in just wars.” Philos.Technol.Philosophy and Technology 24.3 (2011)294 Print.

62 “You are going to war for 12 hours, shooting weapons at targets, directing kills on enemy combatants, and then you get in the car, drive home, and within 20 min you are sitting at the dinner table talking to your kids about their homework.” (NPR)

Spring 2013 easier to hold an operator responsible for their actions than a soldier on the ground that lacks the same level of oversight.

This is not to say that disadvantages do not exist. Beyond the ethical and moral realms, strategic concerns exist. The surveillance and observational technology employed by drones is extremely sophisticated—but it is not always able to provide a complete “tactical situation around the vehicle,” which may result in a situation where “the mission will fail or the vehicle will be lost.”63 The physical distance also means that there is a time delay, however slight.

Though the crux of this paper has been to provide rationale showing that military drone usage has a place in armed conflict carried out by uniformed forces, the CIA’s usage of drones in war zones results in additional legal and ethical gray areas. Namely, the Obama administration was slow to provide

pendent of the other.

Additionally, we must be willing to accept that the changing nature of war means a need to change the means of fighting. As John Yoo explains,

legal rationale…certain to protect, in plain and

to defeat al-Qaeda is to destroy its ability to

unmistakable language, the lawfulness of the

function – by selectively killing or capturing

CIA’s participation in drone-related uses of

its members.66 67

force as it takes place today, and to protect officials and personnel from moves, in the United States or abroad, to treat them as engaged in unlawful activity.6465

It has been the subject of far more scrutiny than military usage, attracting criticism from abroad and wariness at home. Though a separate issue, the overlap and public outcry has made it difficult to discuss one inde63 Glade and Air University (U.S.). Center for Strategy and Technology.

64 Rise of the drones hearing before the Subcommittee on National Security

and Foreign Affairs of the Committee on Oversight and Government Reform, House of Representatives, One Hundred Eleventh Congress, second session., 2011, U.S. G.P.O.

65 Jack Goldsmith, Attorney General under George W. Bush, commented, “The government needs a way to credibly convey to the public that its decisions about who is being targeted — especially when the target is a U.S. citizen — are sound…. First, the government can and should tell us more about the process by which it reaches its high-value targeting decisions…

The more the government tells us about the eyeballs on the issue and the robustness of the process, the more credible will be its claims about the accuracy of its factual determinations and the soundness of its legal ones.

All of this information can be disclosed in some form without endangering critical intelligence.

Using targeted killing as a primary tactic also takes better account of the new kind of war facing the United States. The United States has prevailed in conventional wars by invading the territory of an enemy nation, destroying its armed forces and battlefield, and capturing key cities and population centers. … The United States cannot win the war on terrorism by producing more tanks, fielding more army divisions, or setting more carrier battle groups and submarines to sail than this enemy. This did not work in Vietnam and it will not work against the even more diffuse enemy of today. […] The only way for the United States

Lastly, as a matter of generally addressing concerns over a “drone’s ethics:” they can be, at worst, be no worse than the person operating them. Additionally, we have the capability to design machines free of the less attractive side of human nature: machines can be designed free of selfishness and fear. If we believe the more pessimistic studies, “human soldiers set the bar for ethical conduct so low that just about anything is an improvement,” while “even though over 80% of those surveyed admitted to receiving battlefield ethical training…. the survey showed there was surprisingly low commitment”68 Before we drag the name 66 John C. Yoo. “Assassination or targeted killings after 9/11.(Civil Liberties Ten Years After 9/11).” New York Law School Law Review 56.1 (2011)65 Print.

67 Further, “the problem is not with the strength of America’s power, but how and where to aim it. Al-Qaeda does not mass its operatives into units onto a battlefield…[it] will continue to disguise its members as civilians, hide its bases in remote mountains and deserts…and avoid military confrontation..”

68 Sullins J.P. “RoboWarfare: Can robots be more ethical than humans on the battlefield?” Ethics Inf.Technol.Ethics and Information Technology 12.3

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of humanity through the mud too far and cancel drone programs out of fear, historically, only about 1% of human soldiers will actually aim at another human being with the intent to kill. As retired US Army Lt. Col. Dan Grossman states in On Killing, The U.S. Army Air Corps (now the U.S. Air Force) ran head-on into this problem when it discovered that during World War II less than 1 percent of their fighter pilots accounted for 30 to 40 percent of all enemy aircraft destroyed in the air, and according to [Richard] Gabriel, most fighter pilots “never shot anyone down or even tried to.”69

Another World War II study estimated that “2 percent of combat soldiers…do not experience the normal resistance to killing.”70 In the United States, where there are roughly 1.5 million active duty service members alone, 2 percent may seem like an alarming number.

However, the American Psychiatric Association “indicates that the incidence of…sociopaths among the general population of American males is approximately 3 percent.”71 The vast majority of service members are not, by nature, cold killers, and military actions that would fall under Just War cannot happen without the proper oversight. The fear that drones will end in increased and indiscriminate casualties ignores a long-standing human aversion to killing.

Conclusion Though much of this paper focused on legal and military perspectives attempting to justify drone use, these accounts alone are not enough. Neither are the seemingly enhanced capabilities of a machine that does not tire, does not sleep, and does not fear for its life. When (2010)265 /z-wcorg/. Web.

69 Dave Grossman. On killing : the psychological cost of learning to kill in war and society. Boston: Little, Brown, 1996. Print.

70 Ibid 71 Ibid

26

making the hard decision to engage in armed conflict, it must be made in other ways. Thus, the continued importance of theory in the role of warfare, whether fought with daggers or drones. It serves as a rudder and keel to navigate through changing regimes, methods of warfare, and the ever-present fickle nature of humanity. From the long view of history to the petty day-to-day issues that are soon forgotten, theory gives us an anchor and a better sense of what we should aim to be. It allows us to aspire to be just in changing circumstances, which is of particular importance, as the nature of war becomes something alien to previous generations. Unlike many of the decisions made by governments, theory serves mankind and not an agenda. War may change, but we should not let war change us.

Finally, as a practical matter, it is important to note that the attempt of this paper was to show that drone usage could “follow the rules” of just war; this does not, however, deny that like any weapon, drones are only as ethical as their operators. The limited data on drone operations, however, has helped to show that they are unlikely to turn their operators into disconnected, indiscriminate murderers; that allowing an alternative to full-scale military mobilization is something to be relieved about; and that when deployed in war, they are a most just weapon. It is time to stop criticizing drones based on their inability to be unfailingly ethical; for them to perform under Just War’s standards is ethical enough to allow their usage. ♦

Spring 2013 Works Cited ARMY WAR COLL CARLISLE BARRACKS PA, and Richard P. Schwing. Unmanned Aerial Vehicles - Revolutionary Tools in War and Peace., 2007. Print.

Augustine, Saint,Bishop of Hippo. The City of God;.

New York, Modern Library 1950], 1950. Print.

Benson, Pam. May 18 2009.Web. <http://www.cnn. com/2009/POLITICS/05/18/cia.pakistan.airstrikes/index.html?_s=PM:POLITICS>.

Bergen, Peter. “Civilian Casualties Plummet in Drone Strikes.” CNN.com. 13 July 2012 2012.Web. Brunstetter, Daniel, and Megan Braun. “The Implications of Drones on the just War Tradition.” Ethics & International Affairs 25.03 (2011): 337.

Web. Department of Justice. “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’Ida Or an Associated Force.” 2013. Print.Washington, D.C.: .

Dept. of Distance Education. Keeping Up with the Drones : Is just War Theory Obsolete?. Carlisle Barracks, PA: U.S. Army War College, 2010. /z-wcorg/. Web. MARINE CORPS COMMAND AND STAFF COLL QUANTICO VA, and S. Yadali. Unmanned Aerial Vehicles -- Benefits to the Warfighter., 2006. Print.

NPR. “”The Ethical, Psychological Effects Of Robotic Warfare.”.” October 21 2009.Web. <http://www.npr.org/templates/story/story. php?storyId=113996743>.

New America Foundation., and Terror Free Tomorrow. “Public opinion in Pakistan’s tribal regions.” 2010.Web. Poll, Ian. “The Evolving Capability of UAV Systems.” NATO’s Nations & Partners for Peace 52.2 (2007): 130-2. Print.

Schulzke M. “Robots as Weapons in just Wars.” Philos.Technol.Philosophy and Technology 24.3 (2011): 293-306. Print.

Garamone, Jim. “From the U.S. Civil War to Afghanistan: A Short History of UAVs.” Army Communicator 27.2 (2002): 63. Print.

Spark, Nick T. “Unmanned Precision Weapons Aren’T New.” U.S.Naval Institute Proceedings 131.2 (2005): 66-71. Print.

Glade, David B., and Air University (U.S.). Center for Strategy and Technology. “Unmanned aerial vehicles implications for military operations.”

2000.Web. /z-wcorg/.

Strawser, Bradley Jay. “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles.” Journal of Military Ethics 9.4 (2010): 342-68. Web.

Grossman, Dave. On Killing : The Psychological Cost of Learning to Kill in War and Society. Boston: Little, Brown, 1996. Print.

Johansson L. “Is it Morally Right to use Unmanned Aerial Vehicles (UAVs) in War?” Philos.Technol.Philosophy and Technology 24.3 (2011): 279-91. Print.

Johnson, James Turner. The Holy War Idea in Western and Islamic Traditions. University Park, Pa.: Pennsylvania State University Press, 1997.

Print.

Leahy, Mary-Kate, and Army War College (U.S.).

Sullins J.P. “RoboWarfare: Can Robots be More Ethical than Humans on the Battlefield?” Ethics Inf. Technol.Ethics and Information Technology 12.3 (2010): 263-75. /z-wcorg/. Web. United Nations. Preparatory Commission for the International Criminal Court. Rome Statute of the International Criminal Court Adopted at Rome on 17 July 1998. [New York]: United Nations, 1999. Print.

United States. Congress. House. Committee on Oversight and Government Reform. Subcommittee on National Security and Foreign Affairs. “Rise of the drones hearing before the Subcommittee 27

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on National Security and Foreign Affairs of the Committee on Oversight and Government Reform, House of Representatives, One Hundred Eleventh Congress, second session.” 2011.Web.

Walzer, Michael. Just and Unjust Wars : A Moral Argument with Historical Illustrations. New York;

28

London: BasicBooks; Perseus Running distributor], 2006. Web. Yoo, John C. “Assassination Or Targeted Killings After 9/11.(Civil Liberties Ten Years After 9/11).”

New York Law School Law Review 56.1 (2011): 57. Print.

Spring 2013

Assessing Security Sector Reform: Evaluating the Effectiveness of a Development Strategy Targeting Security Apparatuses Based on National Indicators Ryan Boone Duke University Abstract Security Sector Reform (SSR) is a development strategy that enhances security actor compatibility with democratic principles and human security. Despite SSR’s emergence and implementation over the last two decades, little empirical analysis has been done to determine SSR’s effectiveness, or how SSR relates to wider indicators of a state’s progress towards democracy or stability. After covering the background, principles, and factors related to SSR, this study assesses SSR’s relationship with improvements in democracy, civilian oversight of the security sector, and human security. By running multivariate regressions on an original dataset covering SSR efforts in nearly 3200 country-years between 1991 and 2010, this study presents substantial empirical evidence that SSR is strongly correlated with improvements in democracy and human security in a number of areas. For a field dominated by security practitioners and development specialists, this study establishes a statistical benchmark that social scientists can use to further assess SSR efforts.

Introduction Security Sector Reform (SSR) is a development strategy that attempts to alter the composition and behavior of state security apparatuses and their associated institutes. SSR hinges upon the concept that long-term stability and peace is best achieved by bringing such institutions in line with democratic principles and gearing them for the provision of what has become known as “human security.” Though the SSR field coalesced nearly two decades ago, no comprehensive effort to evaluate its impact has been completed to date. The SSR literature that exists has arisen as the result of the work of practitioners rather than academics, and empirical analysis in support of SSR is scarce.1 This paper sets out to quantitatively study the effectiveness of Security Sector Reform efforts on both the political development countries experience and the well-being enjoyed by their 1 Peake, Gordon, Eric Scheye, and Alice Hills. “Introduction.” Civil Wars 8.2 (2006): 83-86. p. 83

citizens. In short, do SSR efforts have a significant impact on overall democratization and human security? I argue that they do, and present empirical evidence to support SSR’s effectiveness.

Security Sector Reform specifically tries to promote democracy, and diverges from other types of development efforts and traditional defense reform.

SSR targets the “security sector” of states, which include armed state and non-state actors, oversight bodies, and relevant civil-society organizations. The field of SSR thus covers a broad range of institutions and initiatives. This study primarily focuses on major efforts to reform the armed services, local and national police forces, civilian oversight bodies, and non-state actors. Other subfields exist that focus on gender relations within the security sector, reforming intelligence communities and penal systems, border security, and establishing civilian security expertise, among others. Evaluating the full extent of SSR is beyond the scope of this paper, and the dataset and 29

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conclusions drawn herein are intended as an initial assessment that could prove a launching point for further research.

Beyond targeting specific foci within the security sector, SSR efforts alter depending on where a country is in the democratization process, or how stable they are. Security sector efforts in conflict zones, or “SSR under fire,” prioritize building inclusive, capable military and police forces to conduct operations and secure the peace.2 Post-conflict SSR focuses on actions that can prevent a relapse into conflict by conducting disarmament, demobilization, and reintegration (DDR) and small arms control initiatives, and building institutions for both transitional justice and long-term democratization.3 The focus of SSR in more

stable, transitioning countries is less on building new institutions than encouraging existing institutions to maintain rule of law, become more sustainable, and protect the rights and interests of citizens rather than regimes.

This assessment of SSR intersects at least three areas of current research in the field of international relations. First, military-to-military interactions by the U.S. have been shown to have positive, liberalizing effects on partner states.4 Several aspects of SSR are often conducted under the auspices of military-tomilitary programs, and SSR’s relative effectiveness can lend additional justification for those exchanges.

Second, the results of this study provide further evidence that democracy promotion by outside powers can be effective in certain circumstances.

Third, the study of SSR enhances understanding of specific mechanisms by which external conditions, like foreign aid or tutelage, can influence domestic 2 Mackay, Andrew, Mark Sedra, and Geoff Burt. “Security Sector Reform in

Insecure Environments: Learning from Afghanistan.” Journal of Security Sector Management 8.3 (September 2011): 1-20., p. 14

3 The OECD Development Assistance Committee. “Handbook on Security Sector Reform: Supporting Security and Justice.” 2007, p. 100.

4 Atkinson, Carol. “Constructivist Implications of Material Power: Military Engagement and the Socialization of States, 1972-2000.” International Studies Quarterly 50.3 (2006): 509-37. Print. p. 531 30

political developments. Each of these research areas are relevant to policies and programs currently in effect around the world.

It is important to note that the SSR literature stresses that SSR is a whole-of-government approach.

SSR faces opposition from groups that benefit from arrangements not conducive to democracy, or structural obstacles to reform. In addition, ethnic divisions, economic underdevelopment, the presence of exploitable natural resources and other previouslyresearched factors impact SSR. These challenges explain why SSR efforts often fail to achieve meaningful impact. In addition, governance is a broad concept, and SSR addresses only parts of the broad range of government responsibilities. Thus, while SSR aims to improve overall governance, SSR initiatives will not result in added physical infrastructure or improvements in overall development, though they can certainly facilitate future efforts to that effect.

To evaluate SSR’s effectiveness, I have broken this paper into several parts. First, I provide an overview of the field of SSR. This establishes the basic principles that the research has been predicated upon, and how these principles developed. To bring the discussion more in line with more traditional political science literature, I have also compared SSR “theory” to the field of civil-military relations. Second, I discuss factors that complicate development efforts like SSR. Third, I lay out the research design, including how the dataset was constructed and some of the key variables utilized in the analysis. Fourth, I present the major findings and, finally, draw conclusions from the research for future SSR efforts and policy.

Overview of Security Sector Reform Security Sector Reform Background Security sector reform (SSR) is a relatively new field, enabled by the systemic changes that have occurred since the end of the Cold War. The ultimate goal of these efforts is to provide “human security,” a

Spring 2013 concept laid out in the United Nation’s Development Programme’s 1994 Human Development Report that calls for a more people-centered approach to security that mitigates threats to development and wellbeing from both “chronic threats,” like repression or hunger, and “sudden and hurtful disruptions,” like war or natural disasters.5 SSR strengthens governments’ capabilities to eliminate threats, increases civilian oversight of security services, and protects democratization. Though SSR efforts change drastically from country to country to address the unique problems each may face, they largely draw from similar methodologies that have coalesced in the last two decades. Understanding what precisely SSR is, however, is hampered by competing definitions and the differing natures of the various aspects of security that programs may target in different countries.

The Organization for Economic Cooperation and Development (OECD) has released a number of influential publications that have shaped the SSR discourse. They define SSR as “seeking to increase partner countries’ ability to meet the range of security needs within their societies in a manner consistent with democratic norms and sound principles of governance, transparency and the rule of law.”6 SSR seeks to change the “security sector,” defined by the OECD as including: ...core security actors (e.g. armed forces, police, gendarmerie, border guards, customs and immigration, and intelligence and security services); security management and oversight bodies (e.g. ministries of defense and internal affairs, financial management bodies and public complaints commissions); justice and law enforcement institutions (e.g. the judiciary, prisons,

prosecution

services,

traditional

justice systems); and non-statutory security forces (e.g. private security companies, guerrilla armies and private militia).7

A simpler definition for the security sector is that it includes any organization that uses force, and entities that either assist or oversee those bodies. The OECD and other organizations stress that non-state actors often play key security or justice roles, and efforts should be taken to include them in SSR approaches, from integrating community justice institutions into state judicial processes to disarming local militias.

With these definitions in mind, it is important to understand SSR’s brief history and main goals before analyzing SSR’s effectiveness.

The past two decades have witnessed a major shift in the manner in which security assistance is provided. Following the end of the Cold War, programs designed to increase security began to shift from “state-centered to people-centered approaches” that reflected the changing nature of threats to global societies.8 International security assistance became increasingly free to target more pervasive causes of instability. Armed conflict, terrorism, and violent crime, whether from non-state actors or state security forces, began to receive greater attention.9 With major conventional and nuclear conflict pushed to the background, international development and security experts sought programs that could be implemented alongside traditional development efforts.

International organizations and European governments are the entities primarily responsible for pushing the development of SSR as an international policy. The term “Security Sector Reform” was coined by UK Secretary of State for International Development Clare Short, and that department 7 Op. cit., OECD DAC, p.5 8 Sedra, Mark. “Security Sector Reform 101.” Centre for International

5 United Nations Development Programme. Human Development Report 1994.

Rep. New York: Oxford UP, 1994. Print. p.23

Governance Innovation. 2010, p. 3

6 Global Facilitation Network for SSR. “A Beginner’s Guide to Security Sector Reform.” 2007.

9 Ball et al. “Voice and Accountability in the Security Sector.” Bonn International Centre for Conversion. 2002, p. 2 31

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greatly refined the concept during the late 1990’s.10 OECD’s Development Assistance Committee (DAC) has also been instrumental in SSR’s formulation; DAC released a reference document on SSR in 2005 that consolidated many of the developments in the field, and published a practical handbook in 2007 to “ensure that donor support to SSR programmes is both effective and sustainable.”11 At the time of its publication, it included 30 examples of SSR programs in 23 countries on five continents. In 2010, the Global Facilitation Network for SSR, sponsored by the UK Department for International Development, released a series of reports detailing regional SSR efforts; among them, GFN presented 57 country studies broken up over seven geographic zones.12 Not all of the studies

documented actual SSR efforts; a substantial portion of the SSR literature analyzes a wide variety of countries for areas conducive to SSR. The number of actual SSR efforts is larger, and using the definitions above and principles that will be explained later, there are programs undertaken in the 1990’s and not covered by the OECD or the GFN that, though not considered SSR at the time, would qualify as such today.

SSR programs to date have usually accompanied some shift in the political environment of the reforming country. These shifts have generated impetus, either among the public, the government, or the security sector, for reform. Potential openings for SSR efforts include reactions to “budgetary necessity,” security sector enhancement in conflict or post-conflict zones, transitions from military or authoritarian rule, or desire on the part of reforming countries to join international organizations.13 Once these efforts begin, they can be driven by a variety of host country actors with different motives, ranging from genuine 10 Op. cit., Sedra., p. 3 11 Op. cit., OECD DAC, p. 27 12 http://www.ssrnetwork.net/topic_guides/index.php 13 Wulf, Herbert. “Security Sector Reform in Developing and Transitional

Countries.” Berghof Research Centre for Constructive Conflict Management.

July 2004. p. 8

32

desires for democratization to responding to pressure from international donors.14 The motives and actors involved in SSR greatly impact its outcomes.

Principles of Security Sector Reform

The goal of SSR programs is to improve the ability of security sectors to maintain the peace in a manner consistent with democracy. Thus, there are a few principles and guidelines that any SSR effort follows. As OECD was critical in building consensus on SSR, the 2007 DAC Handbook’s principles and guidelines are an excellent place to start. OECD begins with four core principles: 1. “Establishment of effective governance, oversight and accountability in the security system.”

2. “Improved delivery of security and justice services.”

3. “Development of local leadership and ownership of the reform process.”

4. “Sustainability of justice and security service delivery.”15

The handbook goes on to list several additional guidelines for the nature of SSR programs: • “People-centered, locally owned and based on democratic norms and human rights principles and the rule of law, seeking to provide freedom from fear and measurable reductions in armed violence and crime.”

• “Seen as a framework to structure thinking about how to address diverse security challenges

facing

states

and

their

populations, through more integrated development and security policies and through greater civilian involvement and oversight.”

14 Ibid., p. 8 15 Op. cit., OECD DAC, p. 27

Spring 2013 • “Founded on activities with multi-sectoral strategies, based upon a broad assessment of the range of security and justice needs of the people and the state.”

• “Developed adhering to basic governance principles such as transparency and accountability.”

• “Implemented through clear processes and policies that aim to enhance the institutional and human capacity needed for security policy to function effectively and for justice to be delivered equitably.”16

of cooperation and coordination by involving all stakeholders in a unified SSR process. CIGI takes this further by also calling for integration and cooperation within operational or policy processes as “the malfunctioning or break down of one element… can cause the destabilization or even collapse of the entire sector.”18 This cooperation increases the vulnerability of fledgling institutions to the collapse of others in exchange for the hope that fostering a sense of collaboration amongst actors breaks down established organizational fiefdoms and enhances communication for society’s benefit.

To add further complexity, SSR initiatives have four “dimensions”: political, institutional, economic, and societal.19 The political focus primarily

Taken together, these statements reflect a Wilsonian conviction that all efforts, between post-conflict reconstruction to reform within well-developed countries, should keep in mind the objective of advancing democracy. Enforcing these principles is more difficult in conflict or post-conflict zones, where there is heavy emphasis on building the military and police forces necessary to win or end open conflict.

However, SSR’s dogma stresses that these efforts, if taken without eventual liberalization in mind, can jeopardize future democratization.

In addition to OECD principles and guidelines, the Centre for International Governance Innovation outlines additional concepts SSR initiatives should stress. Among their seven points, two not covered in the OECD definitions include “primacy of rule of law” and “whole of government coordination.”17 Rule of law is often stressed in the SSR literature as critical to establishing government legitimacy and effectiveness, preventing corruption or major deviations from expectations. Though the OECD does cover accountability, CIGI and other organizations are far more explicit in its demands in this area. The whole of government approach enhances a culture

involves oversight and management, while the institutional dimension builds organizational culture and professionalism. The latter is also responsible for tackling corruption and inefficiency. The economic dimension is concerned with logistics: is resource consumption of the sector, through manpower, money, or other materials, appropriate given security needs and is it sustainable? The societal aspect is primarily involved with bringing on board civil society actors to monitor the security sector and serve as whistleblowers when security actors are not held accountable.

Every SSR effort utilizes those principles above in some manner. As for methodology, that diverges by the targeted sub-sector. Each of these sub-sectors have an associated sub-field of SSR literature associated with it that propose strategies for accomplishing SSR within the sub-sector and analyze complicating factors. The OECD parses SSR efforts by their intended target of reform: establishing oversight and accountability, defense reform, intelligence reform, border management, police reform, judicial reform, penitentiary reform, private security firm reform, and

16 Ibid., p. 28 17 Op. cit., Sedra, p. 6

18 Ibid., p. 6 19 Op. cit., Wulf, p. 5 33

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the strengthening of civil society actors.20 Though this study focused on only a subset of those subfields, it covers a preponderance of the efforts taken.

Civil-Military Relations Theory in Security Sector Reform An integral part of security sector reform (SSR) is establishing civilian oversight over security sector actors. Indeed, the Organization for Economic Cooperation and Development (OECD) lists the “establishment of effective governance, oversight and accountability in the security system” as the first of four core SSR objectives.21 The field of civil-military relations analyzes the methods and patterns of behavior in which non-military actors, whether individuals or institutions, interact with the military. If, at minimum, a state is an entity that claims the Weberian monopoly of force within a given territory, the military is the institution in modern societies that best enforces that monopoly. Convincing the military to subject its ability to exercise that force to the discretion of a civilian entity is not simple; militaries still control or heavily influence the politics of numerous countries around the world. SSR seeks to expand civilian oversight not only the military but other security actors, including police forces, intelligence agencies, and non-state actors. However, since these actors are, like the military, ultimately tasked with advancing the security of states, the patterns of behavior that allow civil bodies to oversee the military carry over to oversight of these other entities to some degree.

Much of the civil-military relations literature has examined the relationship between civilians elected in Western democratic societies and large militaries. Samuel Huntington, in the Soldier and the State, advanced an institutional civil-military relations theory that has dominated the field for decades, 20 Op. cit., OECD DAC, p. 7.

21 Ibid., p.27

34

and continues to influence modern thinking on the subject. Huntington argued that the key to successful civilian oversight lies in reducing the military’s political power, which can be accomplished by either maximizing civilian control or maximizing military professionalism.22 Civilian control over the military is exercised by government institutions, social classes, constitutional form, or a combination of the three.

However, simply increasing the power of civilian institutions subjects the military to group rivalries as civilian entities seek its support to advance their own organizational interests.23 Huntington identified the separation of powers as found in the U.S. Constitution as having deleterious effects on civil-military relations for this very reason, though he acknowledged that the safeguards provided by those separations against abuses of power by civilian authorities make them necessary.

In contrast with the above “subjective civilian control,” military power can also be controlled “objectively” by fostering the “professional attitudes and behavior” of the military and giving the officer corps a degree of autonomy over military matters while distancing it from political ones.24 Huntington argues that this renders the military “politically sterile and neutral” and effectively a tool for legitimate civilian authorities to wield.25 Professionalism provides a counterweight to politicizing influences by giving military elites incentives to protect their reputation as impartial experts in martial matters.

Huntington also breaks civil-military relations down into issues of power and ideology. He defines power as the “capacity to control the behavior of other people.”26 Power relationships differ in the degree 22 Huntington, Samuel P. The Soldier and the State; the Theory and Politics of Civil-Military Relations. Cambridge: Belknap of Harvard UP, 1957. Print. p.

80, 83 23 Ibid., p. 80 24 Ibid., p. 83 25 Ibid., p. 84 26 Ibid., p. 86

Spring 2013 and extent in which they can be utilized, and exist as formal authority or informal influence.27 The degree of power is an indicator of the weight of influence in a given area, while the extent of power determines how many areas that influence can be leveraged in.

Authority denotes power obtained through legitimate, structural means, while informal influence is power obtained by other means, including wealth or personal relationships. Huntington argues that authority is largely derived by the position of a group in the governmental hierarchy, group unity, and the scope of its interactions.28 Influence, on the other hand, is derived from affiliations, available economic and human resources, the presence of group members in other organizations, and popularity.29 Ideology is a “set of values” regarding state functions, and ideologies, like liberalism, that clash with relatively consistent, conservative military ethics limit military power.30 The core argument in Huntington’s work is that the interplay of power, military professionalism, and ideology determine the nature of a country’s civilmilitary relations.

An alternative theory that could be used to examine the relationship between civilian bodies and security actors is Peter Feaver’s principal-agency theory. Drawing on microeconomic theory, agency theory is based on principal-agent relationships.31 Feaver stresses that “civilians have legitimate authority over the military whatever their de facto ability to control the military may be.”32 Civilian bodies delegate tasks to the military agents, who in turn must decide to either obey or resist. Many factors affect this decision: the extent and cost of civilian monitoring of the military, the compatibility of civilian and military 27 Ibid., p. 86 28 Ibid., p. 87 29 Ibid., p. 88-89 30 Ibid., 89-92 31 Feaver, Peter. Armed Servants: Agency, Oversight, and Civil-Military

Relations. Cambridge, MA: Harvard UP, 2003. Print. p. 2

32 Ibid., p. 54

policy preferences, political strength of the principal and the agent, and ability of the principal to punish the agent, among others.33 Feaver blends two aspects of microeconomics into his framework: a) the agent obeys when monitored, and “shirks” when it is not, and b) monitoring is often inefficient, and “optimal compliance” occurs when agent preferences become similar to those of the principal.34 At one end of the results spectrum, the agent will do exactly as the principal asks, while at the other end of the spectrum, the agent utilizes its monopoly of force to overthrow the civilian authorities. However, given that both civilian overseers and military agents have the shared goal of providing national security, they are not usually antagonists; rather, differences occur over the methods and costs of providing security. Feaver breaks civilian goals into the functional goal of ensuring the military has the capacity to fend off enemies and the relational goal of preventing the military from using that capacity to limit civilian authority.35 Civilians oversee military activities through investigations and institutional checks to ensure the agents carry out their responsibilities. Military agents, in democracies, can avoid completing their responsibilities by attempting to change cost expectations of a policy, appealing to the public or other actors, or slowing policy implementation.36 Civilian actors can increase the likelihood of cooperation by determining who can join the military, promoting individuals who share similar policy preferences, or offering material benefits.37 If the agent still fails, civilian authorities in democratic societies can punish the agent by firing them, sanctioning their command by reducing budgets

33 Ibid., p. 3 34 Ibid., p. 56 35 Ibid., p. 61 36 Ibid., p. 68 37 Ibid., p. 77, 81 35

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or autonomy, or pursuing legal action.38 Agency theory involves the constant interaction of the civilian authorities and the military, and whether the latter can reasonably expect to get away with disobeying the wishes of the former.

Both of the above theories lend themselves to different areas of the SSR, and policies rooted in either theory can be pursued in tandem in a complementary fashion. At the risk of over-simplicity, Huntington argued for the minimization of military power by developing a culture of professionalism, while Feaver advocated accomplishing this through effective monitoring and enforcement mechanisms. Even if not explicitly cited (though both works are), the concepts behind these two arguments are pervasive in the SSR literature.

The development of a particular political culture among security sector actors institutionalizes values that can be conducive to democratization.

Samuel Finer argued that civilian oversight was strengthened in countries with well-developed “political cultures” where society exhibited respect for governmental institutions, and where civilmilitary roles and positions were clearly defined and valued.39 The development of professionalism as a

political culture among security actors complements the technical side of reform, including capacitybuilding and establishing mechanisms of oversight and accountability, by giving actors incentives to act in particular ways.40 Professionalism directly advances democratic norms because it encourages security officials to actually value their subordination to civil bodies.41 Furthermore, security professionals pride themselves on the effective management of 38 Ibid., p. 87-93 39 Cottey et al., “The Second Generation Problematic: Rethinking Democracy

and Civil-Military Relations.” Armed Forces & Society. Fall 2002 29: 31-56 p.34

40 Ball, Nicole. “Civil Society, Good Governance and the Security Sector.”

41 Ball et al., “Enhancing Democratic Governance of the Security Sector: An

Institutional Assessment Framework.” The Cligendael Institute. 2003. p. 61

36

human and economic resources, and maintaining good relations with broader society.42 All of these reasons make security actors with well-developed senses of professionalism loathe to abuse their power because such abuses threaten the long-term relationships between those security actors and the other aspects of society and government. Furthermore, the SSR literature notes that civilian meddling in the internal affairs of security actors breaks down this professionalism, and subjects them to the whims of civilian entities engaged in rivalries, just like Huntington argued.43 The Cligendael Institute’s report for the Netherlands Foreign Ministry listed key points to consider regarding professionalism when balancing the legitimate responsibilities and needs of security professionals. From the security sector, society can legitimately demand competence, an understanding of and respect for human security, political neutrality and accountability, and subordination of organizational interests for the greater good.44 In return, the security sector expects from society and civilian overseers clearly delineated actor roles and obligations, appropriate training and education to meet mission demands, adequate compensation, respect for professional integrity, meritocratic advancement, and job-security.45 Balancing these professional needs with civilian requests assists maximizes actor professionalism, and thereby minimizes security actors’ political power.

The principal-agent framework is applicable when examining the mechanisms available of oversight bodies to monitor and enforce security actor behavior. James Cohen proposed principalagent theory as a means to identify the relationships 42 Ibid., p. 61 43 Ibid., p. 62 44 Ibid., p. 63 45 Ibid., p. 63

Spring 2013 between security actors and oversight bodies in fragile states.46 He used principal-agent relationships to map pressures exerted on police forces by various other actor and oversight bodies. Like the military, police forces also legitimately possess means of violence, and can turn those means against either the public or the civilian overseers themselves. While mapping out the competing influences, Cohen’s application of principal-agent theory agrees with Huntington’s assessment that competing civilian authorities increase the risk of politicizing security actors by forcing actors to choose between political demands.47

Since access to information on actor intentions and behavior is such a huge part of shaping principal expectations about successful implementation of tasks delegated to the agent, the application of Feaver’s agency theory to SSR most strongly manifests in the need to strengthen oversight and accountability measures. The Cligendael Institute recommends that the best way to handle oversight is to have both internal and external oversight bodies monitoring actor behavior.48 Internal bodies include investigative departments within security actors, while external bodies include legislatures, auditors, and civil society watchdogs. SSR efforts in promoting accountability and oversight should stress cooperation between these oversight bodies, promote transparency on the part of security actors to ensure information access, encourage knowledge of security matters and governing processes within these bodies, and foster trust between civilian oversight bodies and security providers.49

In the OECD DAC Handbook on SSR, notions of accountability and oversight are heavily emphasized, while references to professionalism are

scattered across the various subfields as pertaining to individual sectors. Utilizing the principles above, OECD identifies two methods by which SSR programs focused on fostering oversight can go about their task.

First, if security actors do not possess credible internal oversight mechanisms, setting up external government institutions and civil society watch dogs is a priority.50 At the same time, SSR partners must foster dialogue between security providers and oversight bodies to build a culture of collaboration. The second method is to pass legislation to create the means of oversight and build enforcement capacity to implement them.51 Legal frameworks set up legitimate oversight relationships between civil bodies and security providers. Once these relationships are set up de jure, problems facing them de facto must be identified and mitigated. These problems include lack of security expertise among civilians, secrecy regarding security actors’ internal affairs, financial indiscipline, judicial deference to other actors or corruption, or lack of monitoring capacity.52 However, each of these problems is substantially smaller than “establishing civilian oversight” and easier to tackle individually.

The greater problem arises given the tendency of multiple deficiencies to exist simultaneously, which slows the overall process of SSR. Understanding how civil-military relations have been conceptualized previously, and how those debates have seeped into the SSR literature, lends methodologies by which to approach SSR efforts.

Though promoting professionalism has been spread across the SSR subfields associated with specific actors, principal-agent theory remains as a viable method with which to inform efforts in establishing oversight and accountability. Examining the relationships between security providers and civil oversight bodies, and the

46 Cohen, James. “Application of Principal-Agent Theory to Security Sector Reform.” Journal of Security Sector Management. Nov 2009. Vol. 7, No. 2. p. 1 47 Ibid., p. 7-8 48 Ibid., 69 49 Ibid., 70-71

50 Op. cit., OECD DAC, p. 118 51 Ibid., p. 118 52 Ibid., p. 119 37

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incentives of the former to disregard the wishes of the latter, should inform the SSR debate and improve efforts to identify problem areas.

and human capacity.”

6. Mechanisms

must

exist

to

facilitate

coordination between government bodies and international partners

Complicating Factors Security sector reform (SSR) is a development strategy that specifically targets security actors and their associated bodies. Building the capacity of the state to provide security and improving the quality of the security provided fosters an environment more conducive to future development efforts. However, many of the same conditions that inhibit development also hinder SSR initiatives. The SSR literature stresses the difficulties of successful reform, and caveats that success, if it occurs, is dependent on stakeholder patience and on accurately understanding the host country’s characteristics and reform needs.53 Conditions that hinder development efforts impact SSR in specific ways. The Centre for International Governance Innovation offers seven preconditions necessary for successful SSR: 1. SSR programs “must be locally designed, locally implemented, and locally evaluated” to reduce miscommunication between partners.

2. “The principles, policies, laws and structures developed during the reform” must not contradict “the reforming country’s history, culture and legal framework.”

3. There must be “consensus among domestic actors” on the principles, vision, and objectives of the SSR effort.

4. “SSR cannot be implemented in a security vacuum” and is not a solution to “immediate security threats.”

5. “Implementing comprehensive reforms that are owned and directed by local actors requires at least the foundations of stable institutions

53 Peake, Gordon, Eric Scheye, and Alice Hills. “Conclusion.” Civil Wars 8.2 (2006): 251-252.

38

7. SSR requires “long-term outlook and durable supplies of resources to succeed.”54

These preconditions are simplified versions of what CIGI put forward, yet capture the main points.

Relations between processes necessary for SSR and factors that have traditionally inhibit development should be apparent. The first precondition stresses local ownership of development efforts, rather than reform being a solely external push. The second precondition refers to the political culture in the target country, which can be a hindrance to reform efforts if the culture emphasizes traits antagonistic to SSR’s associated democratization or establishment of accountability. The third and sixth preconditions call for the consensus of a broad range of stakeholders in policy creation. This is more difficult in deeply fractionalized societies, such as those suffering from significant ethnic divisions or from economic inequality. The fourth precondition refers to the existing security environment; post-conflict situations are difficult areas to achieve reform in, while SSR is a thoroughly different enterprise in zones of active conflict. The fifth precondition supposes a degree of institutional strength and human development, without which reforms cannot be enforced or understood. The final precondition is simply an understanding that SSR efforts are not quick affairs, and that long-term patience and material support will be required for SSR initiatives to be successful.

Of those factors mentioned (local ownership, political culture, societal divisions, economic and human development, post-conflict or active conflict status, institutional effectiveness, and patience), all 54 Op. cit., Sedra, p. 8

Spring 2013 but the first and last factors are not project specific and influence a wide variety of conditions in the target country. Further elaboration of how each of these factors can inhibit SSR is warranted.

Political Culture Public attitudes toward governance and the type of civil society actors present could all be considered aspects of the target country’s political culture. Depending on how these traits manifest, SSR initiatives either bridges differences between how institutions function and attitudes, or must change the political culture itself. Naturally, the latter option is more difficult.

Jennifer Widner identifies several traits that, together, she refers to as “Social Capital.” These traits are cultural predisposition to trust, willingness to join in volunteer efforts, propensity towards political participation, satisfaction with existing political arrangements, and optimism.55 Widner argues those cultures with “generalized trust” are more likely to involve themselves in situations where reciprocity might be expected, such as political coalitions or business deals.56 Effective governance builds this trust, while ineffective governance can destroy it. The prevalence of voluntarism indicates the initiative of the population to work together to solve social problems, even when the government lacks the ability to do so.57 A willingness to participate in politics by individuals signals the buy-in of the population into established institutions.58 Satisfaction with political arrangements does not indicate that the population has no demands, but rather that there is a marked sense of derived benefit from current institutions.59 Finally, optimism 55 Widner, Jennifer A. “Building Effective Trust in the Aftermath of Severe Conflict.” When States Fail: Causes and Consequences. Ed. Robert I. Rotberg.

Princeton, NJ: Princeton UP, 2004. 222-36. Print. p. 223 56 Ibid., p. 225 57 Ibid., p. 229 58 Ibid., p. 229 59 Ibid., p. 227

is strongly related to the population’s time-horizons, with more optimistic cultures more likely to tolerate initiatives that may take longer to generate positive outcomes.60 These traits indicate the underpinnings of democratic society, and political cultures that do not possess these traits will have a harder time with the transition, and with SSR efforts. That by no means precludes the success of SSR efforts, but inhibits them.

To build and maintain these traits within societies, Widner argues that governments should take steps to demonstrate their ability to provide for the public welfare by building infrastructure and offering visible services, while maintaining an image of accountable service and avoiding patronage and corruption.61 The importance of political culture to development ties into Samuel Huntington’s concept of a culture of professionalism. A society that trusts in government and freely participates in organizations is probably more likely to develop professionalism among its security sector actors.

On top of base attitudes within a society, a target country’s political culture is heavily affected by the strength and nature of its civil society. As civil society is comprised of non-state actors, it can be a source of activity that reinforces positive social traits, or sows discord and conflict.62 Actors can serve to either advocate for government policies or service provision, or attempt to provide services themselves in a manner that can either augment or compete with state efforts.63 Civil society groups are especially important to SSR efforts designed to increase civilian oversight of security actors due to their historic role as “watchdogs” for government activity. The development literature includes non-state actors like 60 Ibid., p. 231 61 Ibid., p. 235 62 Posner, Daniel N. “Civil Society and the Reconstruction of Failed

States.” When States Fail: Causes and Consequences. Ed. Robert I. Rotberg.

Princeton, NJ: Princeton UP, 2004. 237-55. Print. p. 237

63 Ibid., p. 237 39

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extremist groups and organized crime in its concept of civil society. When these civil society groups takes it upon themselves to provide security, or challenge the stateâ&#x20AC;&#x2122;s monopoly on force, civil society competes with the state and reduces the likelihood of accountability and successful monitoring. A key imperative for SSR efforts is to encourage antagonistic civil society groups to disarm and work with government security actors on the one hand, and encourage tolerance of civil society monitoring of the security sector on the other.

Societal Fractionalization One of the most common forms of fractionalization within a society is via ethnicities, but religion, socio-economic status, geography, political ideologies, and other factors create social cleavages.

These cleavages separate groups, who each possess interests that they pursue. If interests are mutually exclusive and institutions are not in place to resolve conflicts, tensions increase and occasionally turn to violence. Even if tensions remain peaceful, competition between groups can inhibit reforms dependent on the consensus of diverse stakeholders.

Cleavages deepen further when they acquire multiple, stacking qualities. An example would be two competing ethnic groups that also happen to have religious and socio-economic differences. Donald Horowitz notes several factors that influence how powerful ethnic divisions can be in a society. One is whether groups live in relative hierarchy, or in parallel.64 The former involves the subordination of one group to another, which usually leads to socioeconomic stratification. Horowitz stresses that most revolutionary struggles in the developing world fit this pattern, even if class struggle was cited as the main concern, because ethnicity and inequality

64 Horowitz, Donald L. Ethnic Groups in Conflict. Berkeley: University of California, 1985. Print. p. 22 40

of relationships were the underlying cause.65 In contrast, conflict between parallel groups is usually more symmetrical as both have staked out spheres of influence in both geographic and economic terms, and are attempting to either defend their own interests or expand them at the expense of a rival group, much like states in interstate conflict.66 Parallel groups, in essence, form separate societies within a single larger framework because each group has many institutions and cultural traits that do not expand to other groups within the larger society.

These two structures of ethnic relations have consequences for SSR efforts. Reform efforts in a hierarchical society, in which one group is clearly subordinate to another, need to work with elites to implement reforms conducive to building equality rather than maintaining superiority. Reform efforts in a parallel society needs to focus on bridging gaps between competing factions and obtaining consensus on initiatives, while taking care that no group is able to utilize the reforms to gain an undue advantage over other ethnic groups.

Another dynamic Horowitz identifies is the relative distribution and power of ethnic groups.67 If power is diffused among many groups, it is less likely that any particular group will establish a preponderance of power to the extent that it can dominate all the others. Coalitions of other ethnic groups can balance against a group gaining too much power to counter them. In these situations, it is possible for groups to be awarded certain benefits or compromise on issues affecting subsets of groups, because other factions may be relatively unaffected. Politics does not have to be a zero-sum game. In contrast, political environments dominated by a few powerful groups may see any gain by one group as a direct threat to the influence of 65 Ibid., p. 30 66 Ibid., p. 31 67 Ibid., p. 37

Spring 2013 another. In these situations, politics becomes a zerosum game, and tensions can arise over many various politicized issues. Institutions are crucial in regulating the power of various groups, and the risk of any one group capturing a state institution may threaten the overall harmony between groups unless there are sufficient checks on how the captured institution can be used for parochial interests. SSR becomes more important in this later circumstance, as oversight of institutional activities becomes imperative to maintain trust between factions. SSR initiatives could establish checks and balances, and limit the likelihood of institutional capture.

Economic Underdevelopment Both the relative wealth and rate of economic growth in a society have tremendous effects for security and, consequently, SSR efforts. Donald Snodgrass lists many different ways weak economic activity undercuts governance that are relevant to SSR efforts: unpredictability and short time horizons, lack of attractiveness of peaceful activities relative to crime or insurgencies, ability to maintain infrastructure, human capital retention, failure to control inflation, inability to collect revenue or inappropriate expenditures, lack of diversity in economic activities, decline in quality of life, population increases, and under-resourced institutions.68 These problems exacerbate societal tensions that can lead to conflict, or at least distract local partner attention from SSR efforts.

Many listed drawbacks of economic underdevelopment have specific effects on SSR. Short time horizons counter the population’s willingness to buy into reform efforts that may take a long time to achieve outcomes. A lack of opportunities offering sufficient advancement or compensation increases the propensity of citizens to join opposition groups. The 68 Snodgrass, Donald R. “Restoring Economic Activity in Failed States.” When States Fail: Causes and Consequences. Ed. Robert I. Rotberg.

Princeton, NJ: Princeton UP, 2004. 256-68. Print. p. 257-58

inability to retain educated people limits institutional effectiveness as talent and critical skills become scarce. Inflation increases pressures on the population and makes it harder for them to make ends meet, which can result in unrest that curbs reform efforts.

Inadequate revenue collection or misplaced policy priorities can leave institutions without the funding to fulfill their mandates effectively, or can alternatively grant resources to security actors in excess of what is actually required to fulfill their mandates. The latter can lead to outsized influence and growth of security actors at the expense of other institutions. In contrast, under-resourced institutions creates principal-agent problems, where the benefits of “shirking,” or not carrying out civilian commands in favor of other objectives, become far more lucrative relative to benefits received for following responsibilities. A lack of economic diversity increases vulnerability due to increased reliance on a few market sectors.

Should those sectors perform poorly, segments of the population employed by those sectors become more prone to malcontent and unrest. Declines in the quality of life relate back to political culture, as constituents need to feel a derived benefit from the current government in order to remain supportive.

Economic underperformance can shake that trust, even if the political institutions are nominally adequate. Population growth can strain the economy if the number of jobs cannot keep pace with the number of persons. This often falls particularly hard on youth, and youth unemployment is a proven catalyst for unrest.

Snodgrass suggests that the correct order of priorities for development efforts designed to jump start economic growth should focus on rebuilding infrastructure first, service networks second, and public institutions third, with human capital development the tertiary stage.69 As institutions come later in 69 Ibid., p. 262 41

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the process, this would suggest SSR efforts aimed at establishing oversight of security sector actors must either wait until a particular level of economic development has been achieved, or possibly rely on civil society actors if civilian government oversight bodies are not yet in place.

Government Ineffectiveness States are ultimately responsible for the wellbeing of their citizenry. Whether this is through active involvement in their individuals lives, or by fostering the best possible environment for growth, modern governance has taken on an ethical obligation to improve the quality of life enjoy by its citizens. Ashraf Ghani and Clare Lockhart list ten such responsibilities: maintain rule of law, maintain a monopoly on the legitimate means of violence, retain effective administrative control of its territory and institutions, responsibly manage public finances, invest in the development of human capital, create inclusive citizenship rights via social policies, provide and expand infrastructure services, form and protect a market economy, manage public assets, and facilitate effective public borrowing.70 As Ghani and Lockhart

put it: The performance of these ten functions produces a clustering effect. When a state performs all ten simultaneously, the synergy creates a virtuous circle in which decisions in the different domains reinforce enfranchisement and opportunity for the citizenry. This supports the legitimacy of the decision makers and their decisions, builds trust in the overall system, and thereby produces a ‘sovereignty dividend.’71

In contrast, if the government performs poorly in one or multiple of the functions, the reverse occurs.

70 Ghani, Ashraf, and Clare Lockhart. Fixing Failed States: A Framework for Rebuilding a Fractured World. New York: Oxford UP, 2009. Print. p. 124-163 71 Ibid., p. 163 42

Weakness in one aspect of government erodes the effectiveness of others, leading to a cycle of delegitimization, inefficiency, and possibly violence.

Ghani and Lockhart call this a “sovereignty gap.”72 This view reinforces the SSR literature’s uniform conviction that SSR is truly a whole-of-government approach.

The concept of rule of law blurs the line between political culture and state capacity, but responsibility ultimately rests with the state to enforce it. Ghani and Lockhart call it a “glue” binding all aspects of government and society together.73 Rule of law hinges on both the legal means to bring power abusers to justice, and then the de facto power to do it. With both, rule of law establishes government accountability, fosters predictability in society that assists citizens hold long time horizons and trust the government, and empowers civil society and business to take initiatives.74 Improving rule of law is a core goal of SSR, though having a strong tradition of rule of law already in place greatly facilitates further SSR efforts.

Holding a monopoly on the legitimate use of force is imperative for state stability because it enables peace, freedom of movement, and ownership.75 A simple monopoly on force avoids reduces conflict and crime by curtailing the ability of other actors to resist the state. Legitimacy is crucial, however, because citizens need to trust that they will not become victims of the state after it has consolidated power. The legitimacy aspect of this state function is another core area of concern to SSR efforts because all security actors ultimately aim to retain the monopoly of force and use it judiciously. SSR is successful if it assists in subordinating the use of force by the military and police forces to civilian command.

72 Ibid., p. 163 73 Ibid., p. 125 74 Ibid., p. 126 75 Ibid., p. 128-129

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Administrative control refers to the influence the government has throughout its territory and in its institutions. This is accomplished by “organizing a state’s territory, functionally and spatially, via a unified body of rules and practices.”76 Long-standing operating procedures for administrations foster trust in the government and legitimacy.77 Divisions of territory, like states or provinces, and divisions of responsibility, like ministries, break down the functions of government into manageable portions.

SSR’s interest in the state function is likely to ensure that divisions of responsibility are manageable and that effective hierarchy is maintained amongst units, instead of government overseers establishing independent bureaucratic fiefdoms.

The collection and allocation of state revenue through taxes is controversial, as is the management of public assets. Without revenue, the government has no funds with which to operate. Yet, though the revenue allows governments to provide services and goods to their citizens, they must often take from the citizens in order to accomplish this. Thus, revenue collection is a balancing act. It is imperative that expenditures are handled in a transparent and accountable manner to retain the trust of the citizenry, and ensure government efficiency.78 Inappropriate allocation of resources can allow certain aspects of government, like select security sector actors, an inordinate amount of control or influence through greater resources, which could be turned on the citizenry. Thus, limiting resources is as important to effective governance as collection is. Depending on the state’s resources, public asset management could require similar oversight as well.79

oppressive security actors. Though conflict minerals and hydrocarbon fuels are usually responsible for these acts, the misuse of forests, land, water, fishing rights, and other public assets can give select groups an advantage that damages the overall stability of society.

Investments in infrastructure and human capital allow the expansion of both the scope and effectiveness of government and society. The development of human capital through education and vocational training enables social mobility and alleviates poverty and inequality, all substantial causes of societal instability.80 It also improves the knowledge and skills that both state and society can rely upon to tackle governance problems. Infrastructure, on the other hand, expands the reach of the administration, which can, in turn, facilitate human capital development and assists in security provision.81 Most aspects of a market economy are inoperable without modern infrastructure, and thus infrastructure is a pre-requisite for economic expansion, which further stabilizes society. Due to the costs of infrastructure projects, the state is often the only entity with sufficient scope and resources to accomplish them.

To combat societal fractionalization, states can create cross-cutting identities and interests by offering benefits to those who become citizens.82 As Ghani and Lockhart put it, “when states use social policy as an instrument for the establishment of equal opportunities, the social fabric created can lead to a sense of national unity and a shared belief in common destiny.”83 Democracy gives a clear buy-in

Rentier states have significant resources that, as they do not come directly from the citizenry, are often managed without transparency and end up funding

via electoral processes, and national identity creates a sense of obligation among the citizenry to each other that ultimately stabilizes society.

Though the fostering of a market economy and

76 Ibid., p. 131 77 Ibid., p. 132 78 Ibid., p. 136 79 Ibid., p. 156

80 Ibid., p. 142 81 Ibid., p. 147 82 Ibid., p. 144 83 Ibid., p. 144 43

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creating institutions that facilitate public borrowing are important for long-term economic development, they are less important to social stability and SSR than factors listed above. Several of the listed state functions direct relatedly to SSR, while others pertain to the quality of the social fabric supporting the institutions involved.

Governance is a complex series of interrelated factors and processes that constantly interact with each other. Successful governance requires that they all interchange peacefully and efficiently, and human history has revealed that failure is the norm rather than the exception. The factors examined herein (political culture, fractionalization, economic development, and state capacity), each hold implications for the likelihood of success for SSR initiatives. Another important factor remains to be examined, however.

Reform efforts are extraordinarily difficult in conflict and post-conflict environments. All of the factors examined here are at their most antagonistic within those environments, and the transition from conflict to peace involves the creation of institutions in addition to their reform.

Security Sector Reform in Conflict and Post-Conflict Zones Security Sector Reform is more difficult in conflict and post-conflict zones, and has different priorities than SSR in more stable conditions. The emphasis of SSR efforts in zones of active conflict is overwhelmingly on the reconstitution and improvement of security forces to contend with non-state actors and regain the monopoly of force. However, traditional military operations, or the interjection of peacekeeping forces to separate warring factions, are not SSR programs; SSR promotes the quality and norms of security actors to provide security in accordance with democratic principles. After conflict subsides, SSR efforts switch to focus on factors that reduce the risk of renewed conflict. As the risk of violence decreases,

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more time can be spent on looking at how to improve oversight and accountability among security sector actors.

There is more to the complications SSR faces in areas of active or recent conflict than simply the risk of violence, however. For all intents and purposes, these are the quintessential failed states; they suffer from the “sovereignty gap,” whereby the breakdown and destruction of state institutions contributes to the decay of other modern state functions in a mutuallyreinforcing cycle of state failure.84 SSR’s nature as a whole-of-government approach makes its application to failed states particularly difficult. Rather than reform institutions that maintain stability and begin at various stages of democratic governance, SSR in failed states must stabilize the state, reduce risk of renewed conflict, and begin to build institutions from scratch.

States, during intra-state conflict, have ceased to effectively exist. Without a higher authority to appeal to, inhabitants must look after their own security, either individually or by joining entities below the state-level, such as ethnic groups or a variety of non-state actors, which will somehow provide security in a dangerous environment. This creates situations of domestic anarchy.85 As increasing numbers of individuals lose faith in the ability of a state to provide for their safety, and begin to pursue security independent of the state, state institutions weaken. At the “tipping point,” a critical mass is reached where state institutions either cannot collect the resources to maintain security, or face so many different independent groups that it no longer has the capacity to contend with them all.86 It is at this point that the state truly fails, having ceased to control the factor most integral to state functioning: a 84 Op. cit., Ghani & Lockhart, p. 163 85 Kasfir, Nelson. “Domestic Anarchy, Security Dilemmas, and Violent

Predation.” When States Fail: Causes and Consequences. Ed. Robert I. Rotberg.

Princeton, NJ: Princeton UP, 2004. 53-76. Print. p. 55

86 Ibid., p. 59

Spring 2013 monopoly on legitimate force.

In these situations, two behaviors can lead to violence. The first, security dilemmas, occur when the actions of one or more actors taken to secure themselves are interpreted as threatening by other actors, who in turn increase their own pursuits of security.87 This engenders a reciprocal pattern of armament and tension that spirals into violence, despite the fact that securing peace was the main objective of all involved; though more widely used to explain state behavior, it is also applicable to ethnic groups.88 The second behavior is violent predation, where one entity seeks to deprive another of something, like property or the power to act.89 In this case, not all actors desire peace.

In the former behavior, mutual goals are compatible and compromise is possible; in the latter behavior, goals are exclusionary and compromise impossible.

Motives are complex and subject to change; it is not easy to separate the two behaviors as violence or tension created by one can lead to the other, and actors can display both behaviors simultaneously to varying degrees.

Ending hostility therefore necessitates either inhibiting the means or the motive of these behaviors.

This is reflected in the fact that most intra-state conflicts end through either complete military victory or through negotiated settlement.90 Military victories entail the defeat of adversaries through strength of arms, rendering them incapable of further resistance.

Compromises may allow parties to retain the means of violence, but identify areas of potential cooperation and can outline frameworks for future governance.

Negotiated settlements appear more in the spirit of a political culture of compromise, and negotiated frameworks for future governance can give stake to 87 Ibid., p. 55 88 Posen, Barry R. “The Security Dilemma and Ethnic Conflict.” Survival 35.1 (1993): 27-47. p. 28

89 Op. cit., Kasfir., p. 65 90 Toft, Monica Duffy. Securing the Peace: The Durable Settlement of Civil

Wars. Princeton: Princeton UP, 2010. Print. p. 1

many different parties, in addition to providing the written agreements and entry points necessary for future SSR initiatives.91 In practice, however, peace based on these settlements is half as likely to endure as peace brought by military victories.92 Thus, depriving actors of the tools of violence appears to be a more effective way of creating the stability required for future SSR operations.

SSR efforts designed to increase military or police capacity to deal with non-state actors in hostile environs shed much of the field’s focus on democratization, and begins to converge on traditional military technical assistance. SSR “under fire” is distinct from other SSR operations in its nature.93 Whereas SSR often focuses on civilian aspects of the security sector in tandem, SSR under fire overwhelmingly prioritizes the security providers.

SSR under fire differs from non-SSR strategies, like counterinsurgency, by primarily emphasizing improvements in the quality and sustainability of fighting forces, as well as the service provision aspect of the security sector.94 This focus is sometimes at odds with the priorities of other plans, which can include reaching a sufficient quantity of soldiers for critical mass, rapid-deployment of recruits to the field, and countering enemy influence; SSR results in a longer training periods, smaller numbers of combatants, and consistent protection to win “hearts and minds.” The ultimate aim of these efforts is to improve the security sector’s ability to overcome the opposition and render them unable to bring further violence to the population.

The number of actors retaining the ability to recourse to violence is important at the end of conflict. Following “decisive” victory, one side has control over the peace process and enjoys political

91 Op. cit., OECD DAC, p. 101 92 Op. cit., Toft, p. 8 93 Op. cit., Mackay, p. 14 94 Ibid., p. 4 45

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and economic advantages.95 This freedom and unity of action assists state consolidation by this actor following conflict. Though it is possible for the victor to leverage dominance of the security sector to further his advantage, Toft argues that they gain from utilizing the sector responsibly to prevent crime and violence that undermines state resurgence.96 The divided nature of institutions following a negotiated settlement restricts this freedom and unity of action. Rather than a single actor considering the pros and cons of effective compromise and state formation, peace settlements create many actors undergoing these calculations, increasing the likelihood of renewed conflict if actors believe defection best suits their interests.

Once active conflict ends, SSR shifts gears to focus on preventing renewed violence, thereby stabilizing gains. Security sector training and capacity-building continues to ensure the state retains the effective means to deter threats to peace, and assessments need to be undertaken to determine longterm security needs of the budding state.97 However,

the priority of SSR efforts shifts to Disarmament, Demobilization, and Reintegration (DDR). This process involves disbanding parties to the conflict and collecting their weapons, offering either material or vocational assistance to facilitate the transition of ex-combatants to civilian life, and sustained efforts at managing reintegration with society.98 Demobilization and Reintegration Programs (DRP’s) simultaneously reduce the means available to recourse to conflict while increasing the ability of former combatants to live peacefully.

Like most SSR programs, DDR can be a drawn-out process; arms can be collected and 95 Op. cit., Toft, p. 41 96 Ibid. p. 41 97 Op. cit., OECD DAC, p. 103 98 Coletta, Nat J., Markus Kostner, and Ingo Wiederhofer. “Disarmament,

Demobilization, and Reintegration: Lessons and Liabilities in Reconstruction.” When States Fail: Causes and Consequences. Ed. Robert I. Rotberg. Princeton, NJ: Princeton UP, 2004. 170-81. Print. p. 170

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destroyed relatively quickly, but monitoring former combatants to ensure satisfaction with post-conflict life takes time and resources. Part of this involves consistently analyzing the “opportunity structure” of the society that former combatants find themselves suddenly a part of; if there is no demand for unskilled labor, no land to purchase, no credit, and no potential for training or mobility, then ex-combatants are less likely to develop stake in the new society.99 In addition, DRP’s require administrative capacity to distribute transitional assistance that may be lacking in a failed state. Furthermore, DDR has an unusual ability to encourage civil society by creating associations of former combatants that can later serve to cut across cleavages that may develop, and ensure ex-combatants build some social capital. Eliminating the means of violence while increasing the stake former combatants have in society reduces the likelihood of a return to conflict, which can assist in engendering the trust and long-term horizons societies need to move away from conflict, let alone enable future SSR operations.

Disarmament and reintegration, coupled with continued training of reinvigorated, professional security actors, reduce the risk of renewed conflict.

Success is largely dependent on whether security is maintained during the transitional period; if a security vacuum develops, the risk of security dilemma or violent predation returns, endangering the entire SSR process. It is imperative that steps taken in the aftermath of conflict establish the integrity, legitimacy, and agency to set the tone for future institutional behavior.100 In addition to solving these immediate needs in the post-conflict environment, SSR programs should begin working with local actors to determine long-term institutional needs and begin consensus building on how to solve them.

SSR during and after conflict in failed states has 99 Ibid., p. 175 100 Op. cit., OECD DAC, p. 107

Spring 2013 less emphasis on oversight and institutional structure than on rapidly building security sector effectiveness and establishing norms of behavior during state inception. The goal is to foster stability and prevent renewed conflict, with the expectation that future reforms will follow. However, SSR efforts in failed states should keep in mind the long-term goals of creating security sectors conducive to human security, and though some of this focus may be sacrificed in the face of more immediate concerns, steps should be taken that these future goals are not endangered by present actions.

This section has endeavored to explain the environmental challenges that inhibit successful SSR. While pursuing the empirical analysis, I kept these factors in mind and attempted to involve them in the statistical model to account for their impact on SSR. Although I was not able to account for all the complicating factors successfully due to a variety of constraints, they should not be forgotten. This study has certainly benefitted from a macro-level scale of inspection; were practitioners of SSR to apply the lessons drawn from the following sections to their work in the field, they will have to account for these complicating factors in their working environments.

Research Design The goal of this study is to evaluate the impact of SSR efforts on democratization and human security.

My hypothesis was that SSR should have a positive impact in the countries that undertake such efforts.

The factors involved in the outcome of SSR efforts are immense and varied. Thus, to accurately measure the impact of SSR efforts, these other factors were taken into account while testing SSR against variables that reflect good governance and human security. I looked at a range of available governance indicators and generated new variables depicting whether SSR efforts had been undertaken in a given country in a given

year. Country-years constituted my unit of analysis; individual units exist for each country for each year in the target window. My window of analysis ranged from 1991, the end of the Cold War, to 2010, though data availability limited this in several instances.

For many of the variables involved in this assessment, I relied on data previously collected by other institutions and experts. I predicated my dataset upon the work done by the Quality of Government Institute at the University of Gothenburg in Sweden.

Their “QoG Standard Dataset,” time-series version, is a composition of many existing datasets that capture indicators related to governance and political institutions for countries between 1800 and 2010.101 Naturally, not all datasets covered my intended target window, let alone the past two hundred and ten years.

The QoG data includes variables from the World Bank, Freedom House, the Economist Intelligence Unit, and the Database of Political Institutions, as well as from professors like Cheibub & Gandhi for democratization and James Fearon for ethnic fractionalization, among others. Some data included in QoG dataset was outdated, so I updated my dataset from the newer versions of the data the QoG dataset was predicated upon. The Integrated Network for Societal Conflict Research’s polity data was included in the QoG dataset, and I updated my dataset to reflect data released in the most recent Polity IV dataset.102 In addition to the QoG variables, I added variables indicating whether the country was involved in armed conflict in that country-year based on the Correlates of War inter-state, intra-state, extra-state, and non-state conflict datasets.103 101 Teorell, Jan, Nicholas Charron, Marcus Samanni, Sören Holmberg & Bo Rothstein. 2011. The Quality of Government Dataset, version 6Apr11.

University of Gothenburg: The Quality of Government Institute, http://www. qog.pol.gu.se 102 Marshall, Monty G., Keith Jaggers, & Ted Robert Gurr. 2012. Polity IV Project Data Series, version 2010. Societal-Systems Research Inc., http://www. systemicpeace.org/polity/polity4.htm 103 Sarkees, Meredith Reid and Frank Wayman (2010). “COW Wars v. 4.0, 1816-2007.” http://www.correlatesofwar.org (accessed September 26, 2012) 47

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The main dependent variable targeted by this assessment was changes in democratization. Thus, the analysis hinged on long-term changes in the Polity IV polity2 variable. As polity2 ranges from -10 (full authoritarian) to 10 (full democracy), many countries either progress or digress incrementally along the scale. For example, a country that holds its first free and fair elections could receive a bump in its polity2 score for becoming more democratic. The Polity IV dataset does not cover every country present in the QoG dataset. Given the central importance of polity scores to this analysis, I eliminated the countries not covered in the Polity IV dataset. They included mostly small nations, two states that fragmented in the early 1990’s, and Iceland. The resulting dataset comprised 3,234 country-years, including 165 countries.

Retaining as many of these observations as possible was a challenge, and due to unavailable data for many country-years, the number of observations in the results section varies between tests.

Though the polity data is the core dependent variable being analyzed, I took advantage of the data present in the QoG dataset to examine the relationship between SSR and additional variables. These include

Amnesty International’s political terror scale (gd_ ptsa), Cingranelli and Richards Human Rights Dataset variables for freedom of association and assembly (ciri_assn), electoral self-determination (ciri_elecsd), disappearances (ciri_disap), extrajudicial killings (ciri_kill), political imprisonment (ciri_polpris), and torture (ciri_tort), the Database of Political Institutions variables for military officers as chief executives (dpi­_cemo) or defense ministers (dpi_ dmmo), World Bank variables for battle-related deaths (wdi_brd) and military expenditures as percentage of GDP (wdi_megdp), Freedom House scores for civil liberties (fh_cl) and political rights (fh_pr), and the Institutions and Elections Project’s variables for legislative budget oversight (iaep_lap) and legislative veto power over the executive (iaep_lvp) to measure respect for democratic norms and human security concerns relevant to the SSR literature.

To capture whether or not SSR had been undertaken in a country-year, I created two variables, ssr_year and ssr_int. The first indicates whether any SSR effort was made. The second indicates whether that effort was done on behalf of, in conjunction with, or funded by international partners. These are

Figure 1: Distribution of Polity Scores Among Observations

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Figure 2: Example of Polity Score Changes

dummy variables, where a 1 indicates an effort has been undertaken. To assess whether SSR occurred in a country-year, I reviewed a broad array of literature from the Geneva Centre for the Democratic Control of Armed Forces, the Centre for International Governance Innovation, the Global Facilitation Network for Security Sector Reform, Eldis.org, the Institute for Security Studies Africa, the United States Institute for Peace, the International Crisis group, Saferworld, and the Journal of Security Sector Management, among others. To reach beyond the literature SSR where was explicitly addressed, I also looked for elements of defense, police, or government reform that were in keeping with the principles of SSR. This was particularly important for former Soviet-bloc countries, which underwent significant reforms prior to the advent of the SSR development strategy.

Many of the SSR activities encountered were domestically driven and did not hinge on foreign involvement. These instances received a 1 score in ssr_year but a 0 in ssr_int. ssr_int earned a 1 when foreign countries supplied funds for reform projects, conducted extended training or capacity-building programs for members of security actors or associated

institutions in areas related to democratization or human security, directly involved themselves in the construction or reorganization of actors or institutions, or similar activities. Traditional modernization or military capacity-building efforts that Western countries undergo with foreign partners did not qualify because they lacked the specific focus on democratization and human security. Some foreign assistance can be directly contradictory to SSR, such as arms sales, extraordinary rendition programs, and targeted killing program partnerships, among others.

Not all reforms constitute SSR, however; capacity-building and modernization in security sectors are often undertaken without an eye for improving human security or good governance, and many economic development efforts may work to improve good governance without impacting the security sector. For example, under this framework, the defense cuts undertaken by the Vietnamese government in the early 1990â&#x20AC;&#x2122;s in response to the loss of Soviet financial support or U.S.-run military modernization and capacity-building programs in a significant number of countries do not register as SSR. In contrast, should the newly elected Egyptian 49

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government reduce defense expenditures and increase transparency to curb the power of the military deepstate, I would argue that would constitute SSR under this framework. Major legal or constitutional changes regarding the security sector, changes in civil-security sector interaction, police or military reforms that aim to depoliticize forces or hold them accountable, DDR programs, and similar efforts all got flagged as SSR for the years in which they occurred.

In addition to the main dependent and independent variables, several control variables were included. As previous sections have illustrated, SSR is a complex process, and success is dependent on a wide variety of factors. Political culture is more difficult to measure given limited available data, however proxy indicators for societal fractionalization, human development, economic development, and conflictstatus are widely available. When beginning my analysis, I went through the QoG dataset to find existing variables that would be representative of the many factors that influence SSR. al_ethnic, al_ language, and al_religion are indicators of societal fractionalization along ethnic, linguistic, and religious cleavages, respectively. wdi_gdp­ is the World Bank measures of GDP, while. wdi_lifexp proxies for development through life expectancy, as infrastructure variables and human development index data is not available for enough years in the window of analysis. wdi­­_aid is included to measure the net aid a country receives from the international community. wdi_pop is a control variable measuring population size.

Finally, external_conflict and domestic_conflict are variables indicating whether a country was involved in a conflict during that year, either abroad or on its own soil. Including these additional control variables reduced the number of observation tested because some indicators were not be present for every countryyear due to barriers to collection, or simply because they were not observed.

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Before moving onto the results section, it is important to clarify a major point. This study relies on observed effects; without experimentation, it is difficult to prove that SSR causes polity changes. As noted in the background section, openings in political environments have been used to launch SSR efforts, and successful SSR efforts have safeguarded and advanced human rights and democracy that have made host countries amenable to additional reforms. Polity changes and SSR efforts are victim to endogeneity in this regard. However, the SSR literature is, for most part, in agreement that SSR is the correct strategy for reforming security sectors, no matter the difficulty.

Thus, establishing a correlation between SSR efforts, democratization, and other indicators examined by the international community will assist in gauging the overall impact of this development strategy, and perhaps influence decisions going forward.

Assessment Results Using a cross-section, time-series analysis, I tested SSR efforts against p_polity2 scores over the period of analysis. This panel test allows an analysis of SSR’s impact on the polity score while taking into account the influence of the control variables through a General Least Squares Regression. A 95% confidence interval was used, and thus z score results exceeding an absolute value of 1.96 were interpreted as significant.

The panel results indicate a statistically significant level of correlation between SSR efforts and the polity score.

The first few panel tests revealed that control variables were limiting the tested observations.

Returning to the dataset, it became evident that wdi_gdp was missing data for Afghanistan (1991-2001), Cuba, Iraq, North Korea, Libya (1991-1998), Myanmar, Qatar (1991-1999), Serbia & Montenegro, Somalia, Taiwan, and Zimbabwe (2006-2008). Several of these countries have been areas of significant concern to

Spring 2013 the SSR community. Coupled with wdi_gdpâ&#x20AC;&#x2122;s low significance to the model, it was dropped. Missing data for al_language and al_religion eliminated Haiti, El Salvador, Cape Verde, Cuba, Serbia, and Montenegro. Though they were more significant than wdi_gdp, they were not as significant as al_ethnic and I decided to drop them to reclaim those observations for the dataset. External_conflict and wdi_pop proved insignificant and were dropped. Following these adjustments, the only panels missing from the analysis were Taiwan (missing most World Bank data), TimorLeste (missing ethnic fractionalization value), Kosovo (missing ethnic fractionalization value), and Serbia & Montenegro (missing most World Bank Data).

This is unfortunate because the latter three have all been significant recipients of SSR assistance by the international community. Should additional data become available for these indicators, these cases would be welcome, and potentially significant, additions to the analysis.

After narrowing the modelâ&#x20AC;&#x2122;s variables down for either fit or simplicity, ssr_year was found to be statistically significant as a determinant positively impacting polity scores over time. Life expectancy and the amount of international aid received were significant as well, both contributing to upward

trends in polity scores. Ethnic cleavages and domestic conflict were significant and negative. After rerunning the panel test for international SSR efforts, via ssr_int, the results indicate that that subset of the SSR programs captured in the dataset are also significant despite facing different challenges. The gap between the mean descriptive statistics for the SSR variables indicates roughly the portion of SSR that is undertaken without international support. After these first tests, it is reasonable to conclude that SSR efforts do have a correlation with positive polity score advancement.

Though not covered here, the results of other dependent variable tests deserve some mention.

Regarding political terror employed by leaders, general SSR efforts exhibit a significant downward pressure while international SSR efforts proved insignificant. General SSR proved more significant than international SSR in regards to freedom of association and electoral self-determination, but both SSR variables were significant. SSR efforts were significant in regards to mitigating disappearances and political imprisonment, with international programs more effective, however the variables proved inconclusive in regards to extrajudicial killings and torture. International SSR efforts proved significant in encouraging civilian oversight in the offices of

Figure 3: Panel Analysis, SSR vs. Polity Scores

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Figure 4: Panel Analysis, International SSR vs. Polity Scores

Figure 5: Descriptive Statistics for Polity Score Tests

the chief executive and defense minister, while more general SSR did not.

SSR “under fire” occurs occasionally in conflict zones, either through training and restructuring problems with government forces or through active disarmament and demobilization efforts to attempt to curb conflict. Though major conflict was included as a control variable, the CoW database does not include conflicts with casualties below 1,000 deaths annually.

Thus, I thought including battle deaths as a dependent variable would capture lower intensity conflicts that may measure the security sector’s propensity for violence more generally. The main conflict variable represents the existence of major conflict scenarios, while SSR’s impact on battle-related deaths should reveal effectiveness in curbing active and small-scale conflicts. Regarding battle-related deaths, general SSR proved to be strongly associated with reduced casualties, while international SSR did not prove conclusive.

International SSR was associated with an 52

increase in military expenditures as a percentage of GDP, while more general SSR, though leaning that way, did not prove to be statistically significant in that area.

International SSR more strongly guaranteed respect for civil liberties, though both were significantly associated. However, more general SSR proved more strongly correlated with increases in political rights than international SSR programs, though both were significantly associated. International SSR also greatly facilitated increased legislative oversight of budgets, though overall SSR was also significant, and both variables were about equally significant in encouraging legislative veto power over executive actions.

The dependent variables in this study reflect a variety of components of human security and civilian oversight of the security sector. After running many different tests, the empirical data reveals rather substantial evidence that SSR efforts are strongly associated with positive developments in democracy and human security. Without the ability to run an

Spring 2013 experiment of international scope, observations like this will remain the only way to gauge SSRâ&#x20AC;&#x2122;s effectiveness. Such assessments can be further refined through more effective control variables, greater data availability, and increased accuracy on the part of when and where SSR efforts have occurred.

Conclusion This paper set out to assess the effectiveness of the development strategy of Security Sector Reform.

The findings indicate that SSR efforts, both internationally-driven programs and those taken of countriesâ&#x20AC;&#x2122; own volition, are strongly associated with positive democratization and developments in human security. This is encouraging, and justifies the work of the EU, OECD, DCAF, the UN and the myriad other organizations and polities that have provided funding, encouragement, and guidance, and to the countries that have undertaken SSR initiatives themselves. SSR can reasonably be assumed to have had a positive impact on the international community since the end of the Cold War, and the conviction held by the SSR community in the worth of their efforts is now justified by empirical data.

As mentioned in the introduction and research design, this dataset is but a start and should not be regarded as definitive, though it certainly covers a substantial portion of the SSR efforts in the window of analysis. More than 175 different sources were drawn upon to determine whether SSR efforts were undertaken in the more than 3200 country-years, yet it is a certainty that additional sources could shed more light on efforts to date. With the data already collected, more could be accomplished. Recoding several of the variables in a consistent manner, rather than the somewhat disorganized collection from the QoG dataset, would present a more intuitive grasp of the results. Several of the variables could be re-examined via logit models to examine the probability of change following SSR efforts. In addition, steps need to be

taken to reduce the threat of collinearity between conflict and SSR efforts taken during or immediately following fighting. Though SSR does not only occur in or following conflict, this could potentially reduce the soundness of the findings. Finally, the data may be influenced by selection effects on the part of foreign governments and actors in who chooses to pursue SSR and who does not. Further revisions of this study should employ matching techniques to increase finding reliability.

SSR thrives on the deep insight country specialists and development practitioners bring to reform efforts, and working in partnership with those experts for the countries in the datasets would greatly assist with accuracy in reporting. Furthermore, for more effective assessments, SSR efforts could be broken down into the subfields of the literature to analyze how effective each component is in the wider democratization and human security context.

As data on national behavior and political institutions continues to be collected, new indicators will become of increasing utility to future SSR assessments.

Several promising indicators were incompatible with this study because of insufficient data availability.

As new developments unfold in international relations, such as the Arab Spring, the political opening of Myanmar, and the encroachment of extremist Islamic groups in several sub-Saharan countries, the international community should look to past and ongoing SSR efforts for inspiration regarding long-term approaches to democratization and human security. National reformers should take it upon themselves to initiate such projects, especially in states where the security sector resists reform and holds tremendous political power. SSR efforts, or efforts consistent with the principles of SSR, have made a significant impact in the last two decades. This assessment provides some optimism for its efforts in the future. â&#x2122;Ś 53

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Works Cited Atkinson, Carol. “Constructivist Implications of Material Power: Military Engagement and the Socialization of States, 1972-2000.”

International Studies Quarterly 50.3 (2006): 509-37. Print.

Ball, Nicole. “Civil Society, Good Governance and the Security Sector.”

Ball et al., “Enhancing Democratic Governance of the Security Sector: An Institutional Assessment Framework.” The Cligendael Institute. 2003.

Ball et al. “Voice and Accountability in the Security Sector.” Bonn International Centre for Conversion. 2002 Benjamin Miller, “Explaining Change in U.S. Grand Strategy: The Rise of Offensive Liberalism and the War in Iraq,” Security Studies 19, 1 (January 2010), 26-65 Cohen, James. “Application of Principal-Agent Theory to Security Sector Reform.” Journal of Security Sector Management. Nov 2009. Vol. 7, No. 2 Cottey et al., “The Second Generation Problematic: Rethinking Democracy and Civil-Military Relations.” Armed Forces & Society. Fall 2002 29: 31-56 Feaver, Peter. Armed Servants: Agency, Oversight, and Civil-Military Relations. Cambridge, MA: Harvard UP, 2003. Print.

Ghani, Ashraf, and Clare Lockhart. Fixing Failed States: A Framework for Rebuilding a Fractured World. New York: Oxford UP, 2009 Global Facilitation Network for SSR. “A Beginner’s Guide to Security Sector Reform.” 2007.

Horowitz, Donald L. Ethnic Groups in Conflict.

Berkeley: University of California, 1985.

Huntington, Samuel P. The Soldier and the State; the Theory and Politics of Civil-Military Relations. Cambridge: Belknap of Harvard UP, 1957. Print.

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Mackay,Andrew, Mark Sedra, and Geoff Burt. “Security Sector Reform in Insecure Environments: Learning from Afghanistan.” Journal of Security Sector Management 8.3 (September 2011): 1-20 Marshall, Monty G., Keith Jaggers, & Ted Robert Gurr. 2012. Polity IV Project Data Series, version 2010. Societal-Systems Research Inc. OECD Development Assistance Committee.

“Handbook on Security Sector Reform: Supporting Security and Justice.” 2007 Peake, Gordon, Eric Scheye, and Alice Hills.

“Introduction.” Civil Wars 8.2 (2006): 83-86.

Peake, Gordon, Eric Scheye, and Alice Hills.

“Conclusion.” Civil Wars 8.2 (2006): 251-252.

Posen, Barry R. “The Security Dilemma and Ethnic Conflict.” Survival 35.1 (1993): 27-47.

Rotberg, Robert I. When States Fail: Causes and Consequences. Princeton, NJ: Princeton UP, 2004. Print.

Sarkees, Meredith Reid and Frank Wayman (2010).

Resort to War: 1816 - 2007. CQ Press.

Sedra, Mark. “Security Sector Reform 101.” Centre for International Governance Innovation. 2010 Teorell, Jan, Nicholas Charron, Marcus Samanni, Sören Holmberg & Bo Rothstein. 2011. The Quality of Government Dataset, version 6Apr11. University of Gothenburg: The Quality of Government Institute, http://www. qog.pol.gu.se Toft, Monica Duffy. Securing the Peace: The Durable Settlement of Civil Wars. Princeton: Princeton UP, 2010. Print.

United Nations Development Programme. Human Development Report 1994. Rep. New York: Oxford UP, 1994. Print.

Wulf, Herbert. “Security Sector Reform in Developing and Transitional Countries.” Berghof Research Centre for Constructive Conflict Management.

July 2004.

Spring 2013 Appendix: Variable Explanations

Table 1: Descriptive Statistics for Variables

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A Democratic Union in the Making: An Assessment of the European Parliament’s Evolution in Relation to Narrowing the Democratic Deficit Marcus Granlund Duke University Abstract The replacement of “permissive consensus” with the notion of “constraining dissensus” with regard to the European populace’s inclination towards European integration has elicited the need for policy-makers to further enhance the accountability and democratic legitimacy of the European Union. As a consequence, the following paper hones in on the European Parliament (EP) and analyzes the extent to which the evolution of this institution has served to narrow the EU’s democratic deficit. This is done through 1) defining the concept of ‘democratic deficit’ in relation to the EU, 2) providing a historical account of the development of the EP, and 3) analyzing the degree to which the reforms of the Parliament have reduced the democratic deficit, while acknowledging the limits of the institution’s capabilities in this regard. The paper finds that although the historical transformation of the Parliament has narrowed the deficit, the extent to which it has been able to enhance the EU’s democratic legitimacy has been constrained by the interests of members of parliament (MEPs), as well as the second-order nature of the Union’s primary responsibilities.

Introduction The mere “petit oui” in France and the Danish rejection of the Maastricht Treaty in 1992 signified the degree to which segments of the European electorate had become concerned with the perceived secrecy, remoteness and unaccountability of the European Union (Jensen 2009). As an institution founded on the principles of freedom, democracy and equality (European Union 2008), the EU had been deemed lacking with respect to its degree of popular representation.

In particular, the gradual strengthening of the EU’s powers and the expansion of the scope of its responsibilities over time had caused its citizens to become aware of the extent to which the institution affected their everyday lives (Jensen 2009). As a consequence, national politicians and European policy-makers in Brussels were forced to reconcile with the fact that the notion of “permissive consensus,” whereby the absence of public debate on integration had been

interpreted as evidence for consent (Bache, George and Bulmer 2011), had been replaced by a sense of “constraining dissensus” (Down and Wilson 2008).

As the EU’s sole institutional entity subjected to direct elections, the European Parliament seems to possess some of the necessary attributes for mitigating the alleged unaccountability of the European Union.

Accordingly, the following paper seeks to critically examine the evolution of the Parliament in relation to the EU’s pursuit of narrowing its perceived democratic deficit, which was designated as one of the explicit intentions of the latest treaty revisions provided for in the Treaty of Lisbon (Bache et al. 2011). In doing so, the study proceeds by first detailing more specifically what the concept of a democratic deficit entails in the context of the European Union and, second, providing for a historical account of the evolution of the Parliament. Thirdly, the paper analyses the extent to which the Parliament’s transformation has nar57

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rowed the democratic deficit, while acknowledging the limits of the institution’s capabilities in this regard.

The importance of assessing the degree to which the reforms of the European Parliament have been able to reduce the perceived gap between the peoples of Europe and policy-makers in Brussels is indubitable. Ensuring a high degree of accountability on behalf of the EU through the Parliament will serve as an important determinant of the degree to which European electorates will prove accepting of further integration, and will help shape their general inclinations towards the European project. For an institution that has grown exponentially since the 1970s, currently representing over 500 million people (Eurostat 2012), and that has witnessed substantial increases in its powers and responsibilities on the continent since its founding, it is imperative that the EU is perceived as legitimate and accountable to its people.

The European Union and the Democratic Deficit Although the shift from “permissive consensus” to “constraining dissensus” that occurred around the time of Maastricht signified an important change in the mindset of European voters, the concern with the Union’s democratic deficit is not as recent as this change may imply. The term “democratic deficit” first appeared in writing in a 1977 manifesto written by Richard Corbett, an avid federalist and former MEP, that came to form the ideological foundation for the Young European Federalists (JEF) (Federal Union 1977). Nonetheless, former British Labour MP David Marquand has been credited for first having raised the issue while lamenting in the early 1970’s that parliamentary accountability was in dire need of being strengthened within the European Community (Milev 2004).

The concept of democratic deficit in the context of the European Union refers to its perceived shortcomings when it comes to adequately representing, and being sufficiently accountable to, its citizens.

The EU’s unique combination of the characteristics of

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a traditional international organization and that of domestic systems of governance requires a sense of legitimacy that is considerably wider than the indirect legitimacy of other multinational organizations, which is derived from the consent of their national elites (Bache et al. 2011). In other words, the democratic deficit is viewed as potentially undermining the very legitimacy of the European Union as a partly supranational, partly intergovernmental institution (Lasan 2008).

Several institutional inadequacies have been identified as contributing to the existence of a democratic deficit. Scholars have, amongst other things, pointed to the lack of transparency with regard to the EU’s decision-making processes and the unelected nature of the Commission. In terms of the European Parliament, the historical weakness and lack of accountability of the institution have long been points of contestation (Bache et al. 2011).

The issue of the democratic deficit has become particularly salient in face of the widened application of qualified majority voting in the Council over the last decade. This is because this change has opened up the possibility for the democratically elected national governments of member-states to be outvoted in the Council on proposals that subsequently become legally binding to them (Menon and Peet 2010). Accordingly, the continued legitimacy of the European Union as an institution representing the populations of 27 sovereign member-states has in large part hinged on the expansion of the Parliament’s powers and its degree of accountability.

History and Evolution of the European Parliament The evolution of the European Parliament has been characterized by an incremental increase in its relative stature from a “multi-lingual talking shop” to co-legislature (Hix, Scully and Farrell 2012). Symbolically, this transition has been mirrored in the institution’s change of location, having moved from

Spring 2013 being housed jointly with the parliamentary assembly of the Council of Europe to currently occupying two impressive facilities in Strasbourg and Brussels that are bestowed with parliamentary chambers capable of accommodating 750 members of parliament. Similarly, the Parliament’s elevated stature over time has been reflected in the fact that successive attempts at reform of the European Union have all sought to strengthen its role as a legislator, as a means by which to enhance the democratic legitimacy of the Union (Peterson and Shackleton 2012).

In the initial stages of European integration, the notions of parliamentary accountability and representation were not prioritized, especially considering the limited scope of the powers of the ECSC, which only was concerned with the management of coal and steel. Under the Treaty of Paris (1951), the ECSC’s parliamentary institution, the Common Assembly, possessed very limited powers and was conceived of more as an afterthought rather than as an integral institutional feature of the ECSC intended to ensure a high degree of accountability (Peterson and Shackleton 2012). In fact, the Common Assembly was merely a supervisory body comprised of parttime parliamentarians selected from national parliaments, whose sole power was the right to dismiss the High Authority, the organization’s supranational body, by a two-thirds majority. As such, the Common Assembly was effectively a mere forum for discussion (Corbett, Jacobs and Shackleton 2005).

The Treaty of Rome (1957) renamed the Common Assembly the European Parliamentary Assembly and transformed it into a consultative body, whereby it was given the right to be consulted with regard to policy proposals and offer its opinion to the Council. The consultation procedure, however, did not significantly increase the influence of the Parliament, as it was consulted only on a small range of proposals. In terms of the institution’s accountability, the treaty framework further-

more detailed specific provisions for implementing direct elections, as opposed to relying on national parliaments to nominate delegations. Although the initial seeds for making the Parliament directly answerable to the citizens it represented thus had been planted, very little progress was made in this regard and it took decades until direct elections were in fact held (Peterson and Shackleton 2012).

In the 1970s, the Parliament experienced a dramatic transformation related to the institution’s sense of accountability, and gained significant budgetary powers. The Budgetary Treaty of 1970 granted it the power to approve the European Communities’ level of non-compulsory spending in response to the organization’s financing being subjected to a system of ‘own resources’ (Jones 2012). In 1975, further reform enabled it to approve or reject the budget as a whole (Peterson and Shackleton 2012). In addition, the conciliation procedure was introduced, which increased slightly the Parliament’s standing relative to the Council. In the event that the two institutions were to disagree on a legislative proposal, a committee comprising an equal number of representatives from the respective institutions would address the matter in pursuit of a compromise, notwithstanding that the Council still would be entitled the last say regarding the adoption of the legislation (Corbett et al.

2005). Most importantly, in 1979, the provisions laid down in the Treaty of Rome concerning the Parliament’s direct election became a reality, as Europeanwide elections were held for the first time. This meant that the system of nominated parliamentarians from national assemblies was abolished and the Parliament instead came to comprise full-time parliamentarians that were focused exclusively on issues of concern at the European level (Corbett et al. 2005).

In the 1980s, the Parliament’s role in the context of EU decision-making was strengthened further.

The European Court of Justice emphasized its right of consultation through the Isoglucose judgment.

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The Court rejected a piece of Council legislation as a result of the Parliament not having been consulted on the issue, and affirmed that failure to do so could result in further legislation being declared void. As a consequence, the Parliament was endowed with de facto delaying power with respect to Community legislation, cementing its growing level of influence (Peterson and Shackleton 2012). The Single European Act (1985) furthermore introduced the cooperation and assent procedures, whereby the Parliament was given the right to two readings of proposed legislation instead of one, as well as the power to approve, or reject, accession treaties and association agreements. Additionally, parliamentary amendments or outright rejections of legislation now necessitated unanimity in the Council to be overruled and for legislation to proceed (Corbett et al. 2005).

In the 1990s, the European Parliament’s influence over legislation and power of scrutiny were significantly enhanced. The institution experienced a substantial breakthrough when it was transformed into a legislative authority equal in status with the Council through the ratification of the Treaty of Maastricht in 1993. With it, co-decision was introduced, whereby legislation in certain policy areas required the joint consent of both the Council and the Parliament to pass. As an extension of the cooperation procedure, co-decision allowed for the Parliament to cause legislation to fail by rejecting proposals in cases where the conciliation procedure had not amounted to a compromise. The subsequent Treaties of Amsterdam (1997) and Nice (2000) increased the number of policy areas covered by co-decision from 15 to 32, first, and subsequently from 35 to 37. In addition, Maastricht allowed for the Parliament to invite the Commission to submit a policy proposal, thus vesting in it for the first time a limited form of legislative initiative. Moreover, the Parliament’s power of scrutiny concerning the activities of the Commission received a boost during this time. Maastricht allowed for the

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Parliament to approve the composition of the Commission (as a whole), as well as to convene committees of inquiry to scrutinize the activities of the EU executive – powers that later were complemented by the Treaty of Amsterdam granting the Parliament the formal power of approval with regard to the President of the Commission (Corbett et al. 2005).

The ratification of the Treaty of Lisbon (2009) continued the momentum of the 1990s concerning the Parliament’s perpetual strengthening in relation to the Council. Co-decision was termed the “ordinary legislative procedure” and extended to 90 legal bases (Peterson and Shackleton 2012), which included policy related to the common agricultural policy (CAP), the common fisheries policy (CFP), the common commercial policy (CCP) and justice and home affairs (JHA).

In budgetary terms, Lisbon made the Council share power with the Parliament across all areas of spending, thus eliminating the distinction between non-compulsory and compulsory expenditure and allowing for Parliament to have the last word on every category of spending (Emmanouilidis and Stratulat 2010). In addition, the treaty extended the Parliament’s authority concerning the approval of international agreements, including all trade agreements, and affirmed that the European Council must take into account the Parliament’s opinion when it nominates a Commission President (Peterson and Shackleton 2012).

As a result of these reforms, the European Union has been effectively transformed into a twochamber legislature, whereby EU citizens are not only indirectly represented through their democratically elected national governments in the Council, but they also exercise a greater degree of influence over the Union’s decision-making through directly electing the members of a substantially strengthened European Parliament. There is no doubt that the evolution of the Parliament has improved the institution’s leverage within the context of the European Union, as it has become armed with significant budgetary power, limited

Spring 2013 but enhanced legislative power and a greater capability of scrutinizing the European Union’s executive. The question, however, becomes whether a directly elected Parliament with substantially strengthened powers is sufficient for narrowing the EU’s democratic deficit.

Evolution and Democratization – To What Extent Has Reform of the European Parliament Narrowed the Democratic Deficit?

The historical evolution of the European Parliament points to a radical transformation of an institution that comprises an entirely different institution today, than what had been envisioned originally. Now comprising a directly elected political entity, the Parliament’s ability to influence decision-making is far greater today than ever before in the history of the European Union.

The developments since the late 1970’s with regard to empowering the peoples of Europe by means of creating a more influential and assertive Parliament are indeed quite remarkable, especially considering the short period of time over which the progress has been made.

Nonetheless, scholars debate the extent to which the Parliament’s elevated stature and improved accountability have translated into democratic legitimacy and reduced the democratic deficit of the Union as a whole.

On the one hand, the combined strengthening of the Parliament and its transformation into a directly elected body has improved the democratic legitimacy of the EU. The strengthening of the Parliament’s powers and the degree to which the institution increasingly co-decides with the Council on legislative proposals have introduced into the system a substantially higher degree of checks and balances (Kaunert and Zwolski 2010). The Parliament’s elevated powers with regard to scrutinizing the Commission and its increased control over the budget have had a real impact on the workings of the EU. In 2004, the Parliament’s rejection of Rocco Buttiglione, Italy’s nominee for the Commissioner for Justice, and its overall concern with the composition of Barroso’s proposed Commis-

sion eventually forced the latter to withdraw his team to avoid being faced with the Parliament rejecting the Commission in its entirety (Corbett et al. 2005). In budgetary terms, the Parliament has asserted its full authority on a total of three occasions by rejecting the Union’s budget in 1979, 1988 and 2010 (Jones 2012). More recently, the Parliament was also seen to attempt to use its leverage to gain influence over the EU’s 2013 financial framework, as it pursued an increase in the Union’s 2011 budget of almost 6%, as compared to national governments’ targets of at most 2.9%. Although the Parliament eventually stepped down, without receiving any concessions, the fact that the Parliament’s predispositions almost caused the EU to go into 2011 without a proper budget signified again the fact that the institution’s evolution has made it a force to be reckoned with (Menon and Peet 2010).

Direct elections to the European Parliament have moreover resulted in all of the main strands of the political spectrum being represented at the European level. As a consequence, the EU is subjected to the viewpoints of both the right and left, as well as political groupings that are opposed to the very existence of the European Union itself. By having the characteristics of mid-term elections, furthermore, European Parliament elections tend to result in a proportionately larger number of seats being won by the political opposition of the respective member-states. This has resulted in the Parliament itself having provided for a natural balance in relation to the interests of governing parties in the Council, pointing to the way in which direct elections have contributed to narrowing the democratic deficit in a broad sense, by bringing a greater degree of pluralism into play (Corbett 2010).

Hence, the advent of European-wide elections has ensured that decision-making in the EU is not exclusively the matter of ministers, diplomats and bureaucrats, but is subjected to a wide array of opinions that are reflected in the European electorate as a whole, thus contributing to narrowing the EU’s democratic deficit.

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On the other hand, to the extent that the fact that a parliamentary body is elected does not necessarily make it democratic, one needs to investigate the degree to which members of parliament (MEPs) champion the interests of their voters, while in Brussels. In this sense, MEPs have, in spite of the enhanced accountability of the Parliament provided for by direct elections, paradoxically demonstrated an inclination to propel European integration and increase their own powers, in spite of voter preferences. The French and Dutch rejections of the Constitutional Treaty in 2005 underscore the existence of this discrepancy. Whereas the populations of France and the Netherlands were seen to oppose the proposed treaty revisions, French and Dutch MEPs voted resoundingly in favor of the treaty. Although these countries’ national parliaments admittedly also favored the Constitutional Treaty, it is important to point out that there is little evidence that this is indicative of a similar discrepancy at the national level since national parliamentarians are voted into office on the basis of a much wider range of issues, among which those related to the European Union tend to be of little significance (Menon and Peet 2010). Thus, the individual interests of the MEPs themselves have impeded the degree to which the Parliament’s increased accountability has translated into a higher degree of democratic legitimacy of the organization at large.Thus, the degree to which the increased accountability of the Parliament having been achieved through direct elections and the strengthening of its powers has translated into a higher degree of democratic legitimacy has been impeded as a result of the individual interests of the MEPs themselves.

The German Constitutional Court went much further in criticizing the ability of the European Parliament to reduce the democratic deficit. In its ruling on the Lisbon Treaty of June 30th 2009, the Court argued that the Parliament is inherently incapable of narrowing the democratic deficit, asserting that the body itself is not a representative one (Menon and

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Peet 2010). The Court focused on the Parliament’s election procedure whereby national quotas serve to allocate a specific number of parliamentary seats to each member-state. In spite of the quotas taking into account the populations of the member-states as one of the criteria for specifying a country’s allotted number of seats, the Court argued that the procedure rendered the Parliament fundamentally undemocratic in the sense of defying the notion of the equality of votes (Kaunert and Zwolski 2010). In so doing, the Court arguably applied a narrow sense of democracy applicable only to relatively homogenous nationstates, rather than a large, diverse multinational institution like that of the EU. In fact, the world’s most prominent democracy, the United States, employs a similar mechanism whereby its Electoral College system was created with the intention of enhancing geographical representation and ensuring the integrity of the smaller states, albeit at the expense of not fully conforming to a system of one-person one-vote. Few would proclaim that the United States is fundamentally undemocratic. On the contrary, the United States’ (much like the European Union’s) system of government is indicative of the dynamism and evolution of the concept of democracy, whereby a historically divided collection of individual states were able to come together, while ensuring that their people were adequately represented in the election of public officials.

It is nonetheless important to qualify the extent to which reform of the Parliament is capable of narrowing the democratic deficit. Political commentators often point to the low voter turnouts in European Parliament elections as evidence for the extent of the EU’s democratic deficit. Since its inception, direct elections have garnered little interest among the European electorate, having amounted to a mere 43% in 2009 (Menon and Peet 2010). Although such an analysis is fundamentally flawed, it nonetheless points towards the constraints faced by policy-makers that are concerned with the gap between Brussels and the European voter.

Spring 2013 In fact, the low levels of turnout are far from necessarily indicative of an apparatus in Brussels that is out of touch with the European populace. Instead, it is a logical consequence of the lower-order policy areas that comprise the Union’s primary responsibilities. Since most of EU activity concerns the regulation of externalities resulting from increased cross-border economic activity, as opposed to dealing primarily with taxation, health care and education, the European Parliament elections are bound to assume the role of second-order political contests, simply because of a lack of salience of the topics being discussed (Moravcsik 2002). As a consequence, it is unreasonable to expect reform of the European Parliament, and the strengthening of its powers, to suddenly invigorate the European electorate, considering the lower-order nature of the EU’s current primary areas of responsibility. Hence, reform of the European Parliament alone poses limitations with regard to narrowing the democratic deficit.

Conclusion The evolution of the European Parliament has been characterized by improved accountability through the application of direct elections and a perpetual strengthening of its powers. As a consequence, the gap between Brussels and the citizenry of the European Union has been reduced, compared with the earlier stages in European integration. Similarly, the EU’s democratic legitimacy has been increased as a result of the relatively more influential Parliament having introduced more checks and balances on the other EU institutions (notably the Commission and the Council). At the same time, the extent to which it has done so has been inhibited by a number of factors. In part, MEPs desire to accelerate the deepening of integration so as to enhance their own power hint at the fact that voter interests are not necessarily prioritized in Brussels to the full extent that direct elections would imply. In addition, the capabilities of the European Parliament to further reduce the democratic deficit have been shown, and

will continue to be, constrained by the nature of the EU’s current primary responsibilities, as evidenced by the low voter turnout in European Parliament elections. As a consequence, the analysis herein points to the evolution of the European Parliament having reduced the democratic deficit, while recognizing the simultaneous constraints that it faces in this regard. It becomes clear that in spite of the remarkable reforms of the Parliament, the democratic deficit cannot be fully eliminated unless accompanied by reform aimed at other aspects of the workings of the European Union.

In particular, lack of salience, rather than lack of opportunity, may impose the binding restrictions on the democratic legitimacy of the EU (Moravcsik 2002). ♦

Works Cited Bache, Ian, Stephen George, and Simon Bulmer. 2011. Politics in the European Union. Oxford: Oxford University Press.

Corbett, Richard. 2010. “Reconnecting the European Parliament and its People.” In Reconnecting the European Parliament and its People, eds. Adam Hug. London: The Foreign Policy Centre, 18-25.

Corbett, Richard, Francis Jacobs, and Michael Shackleton. 2005. The European Parliament. London: John Harper Publishing.

Down, Ian, and Carole Wilson. 2008. “From ‘Permissive Consensus’ to ‘Constraining Dissensus’: A Polarizing Union?”. Acta Politica 43: 26-49.

Emmanouilidis, Janis, and Corina Stratulat. 2010. Implementing Lisbon: narrowing the EU’s ‘democratic deficit’? Brussels: European Policy Centre.

European Union. 2008. “Treaty on the European Union.”

Official Journal of the European Union.

Eurostat. 2012. “Population at 1 January.” April 2.

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http://epp.eurostat.ec.europa.eu/tgm/table. do?tab=table&language=en&pcode=tps000 01&tableSelection=1&footnotes=yes&label ing=labels&plugin=1 (December 12, 2012).

Federal Union. 1977. “The first use of the term ‘democratic deficit’.” October 10. http:// www.federalunion.org.uk/the-first-use-of-theterm-democratic-deficit/ (December 6, 2012).

Hix, Simon, Roger Scully, and David Farrell. 2012.

“National or European Parliamentarians?

Evidence from a New Survey of the Members of the European Parliament.” Journal of Common Market Studies 50 (July): 670-83.

Jensen, Thomas. 2009. “The Democratic Deficit of the European Union.” Living Reviews in Democracy 1 (March): 1-8.

Jones, Fabia. 2012. “The Budgetary Procedure.”

January. www.europarl.europa.eu/ftu/pdf/ en/FTU_1.4.3.pdf (December 10, 2012).

Kaunert, Christian, and Kamil Zwolski. 2010. “The European Parliament and the EU democratic

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deficit: The right solution to the wrong problem?” In Reconnecting the European Parliament and its People, eds. Adam Hug. London: The Foreign Policy Centre, 52-9.

Lasan, Nicoleta. 2008. “How far can the European Parliament correct the European Union’s democratic deficit?” Romanian Journal of European Affairs 8 (December): 18-26.

Menon, Anand, and John Peet. 2010. “Beyond the European Parliament: Rethinking the EU’s democratic legitimacy”. Centre for European Reform.

Milev, Mihail. 2004. A ‘Democratic Deficit’ in the European Union?. Nice: Institut Européen des Hautes Etudes Internationales.

Moravcsik, Andrew. 2002. “In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union”. Journal of Common Market Studies 40 (November): 603-24.

Peterson, John, and Michael Shackleton. 2012.

The Institutions of the European Union. Oxford: Oxford University Press.

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Deference for the Divine: The Court and the Church Reed McGinley-Stempel Duke University Abstract This paper will examine the Hosanna-Tabor v. EEOC case and its implications to discern the proper relationship between religion and law. To understand this sometimes volatile relationship, I will review the work of John Rawls and Stanley Hauerwas and how their personal ideologies would impact their judgments on the Supreme Court decision. Rawls’ philosophy suggests that he would disagree with the court’s decision on the basis that a religion’s freedom only extends insofar as it does not eclipse other citizens’ liberties, but Hauerwas would likely be quick to argue that the church exists outside of typical secular law and therefore cannot be held subordinate to the same standards as nonreligious institutions.

Introduction During the past fifty years, religion has seen its influence wane in our legal system as the Supreme Court has issued some of its most monumental decisions. Many of the decisions have reflected a shift toward a more secular nation. In 1962, the Court determined in Engle v. Vitale that prayer in public schools was unconstitutional, a blow to evangelical Protestants (Critchlow 134). In 1973, the Court legalized abortion through the Roe v. Wade decision and simultaneously sent shockwaves throughout the Roman Catholic community (Critchlow 134). The Court then struck a blow directly against religion’s protected status in the legal realm in Employment Division v. Smith, when it stated that religious beliefs should not entitle believers to exemption from “generally applicable laws,” (McConnell 1115).

This decision was particularly surprising given that United States law permits exemptions for religious minorities in many different instances, ranging from compulsory immunization to compulsory schooling.

However, just as this string of court cases appeared to symbolize a loss of religious clout and autonomy, the Supreme Court restored this seemingly fading religious authority in America’s legal system

in January 2012 through its decision in HosannaTabor Evangelical Lutheran Church and School v.

Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). An employee, Cheryl Perich, sued for wrongful termination by the religious institution on the basis of disability discrimination. The Court ruled that the First Amendment barred the government from interfering with the relationship between a religious institution and its employees (Hosanna-Tabor v. EEOC, 2012 132 S. Ct. at 695). This controversial decision further magnifies two long-contested questions: (1) what role should the church, as a private institution, inhabit in the public sphere and (2) should religious institutions be obligated to act in accordance with secular laws, even if it curtails their autonomy?

This paper will examine the Hosanna-Tabor v. EEOC case and its implications to discern the proper relationship between religion and law. To understand this sometimes volatile relationship, I will review the work of John Rawls and Stanley Hauerwas and how their personal ideologies would impact their judgments on the Supreme Court decision.

Rawls’ philosophy suggests that he would disagree with the court’s decision on the basis that a religion’s freedom only extends insofar as it does not eclipse 65

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other citizens’ liberties, but Hauerwas would likely be quick to argue that the church exists outside of typical secular law and therefore cannot be held subordinate to the same standards as nonreligious institutions.

Affirmation of the Ministerial Exception: Hosanna-Tabor v. EEOC Cheryl Perich, a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School, missed half of the 2004-2005 school year after being diagnosed with narcolepsy. When she attempted to return to teaching in February, the school informed her that she had been replaced but that the school was willing to pay part of her health insurance premiums if she agreed to resign from her position. When Perich refused this offer and threatened to “assert her legal rights,” the school fired her for insubordination. In reaction to her termination, Perich filed a charge with the Equal Employment Opportunity Commission against the school and the EEOC filed a lawsuit on Perich’s behalf in federal court, arguing that her firing violated the Americans with Disabilities Act. She argued that her employer fired her in retaliation for her threats to pursue legal options if the school forbade her from returning to work (Hosanna-Tabor v. EEOC, 2012 132 S. Ct. at 696).

In response to these allegations, the HosannaTabor Church and School argued that the court could not encroach on the employment relationship between a religious institution and its ministers, according to the Establishment and Free Exercise Clauses of the First Amendment (as interpreted by the courts).

While Cheryl Perich was a teacher, Hosanna-Tabor argued that the “ministerial exception,” which protects religious institutions from suits brought by ministers pursuant to traditional anti-discrimination labor laws, applied to Perich because her duties extended beyond those of an ordinary teacher. Indeed, she did perform certain religious roles as a teacher including leading chapel service on occasion, teaching a religion class, and instructing other religious exer-

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cises daily. Perich’s functions outside of those of a typical schoolteacher led Hosanna-Tabor to argue in the lawsuit that Perich qualified as a minister for the purposes of the ADA, and therefore that the Court should apply the “ministerial exception.” In addition, the Hosanna-Tabor Church and School asserted that the reason they fired her was primarily religious— according to the school, Synod beliefs mandate that disputes be handled internally, so Perich’s threat to sue was a departure from their religious doctrine (Hosanna-Tabor v. EEOC, 2012 132 S. Ct. at 706-09).

The Supreme Court concurred that the “ministerial exception” extended to Cheryl Perich’s occupation as a teacher at the church and school because there were elements of religion encompassed in her job, so she could be rightly considered a “minister.” It was this that led to a surprising unanimous decision in favor of the Hosanna-Tabor Church and School (Hosanna-Tabor v. EEOC, 2012 132 S. Ct. at 709-10). While the ultimate decision was not altogether shocking given the leaning of the Court and the issues at hand, the unanimity is startling. The case is especially interesting because it pits a religious institution’s freedom against a neutral law aimed at protecting workers’ rights. Even more than that, though, the case poses the question as to how much the government can justifiably intrude in the affairs of the church. Through the lenses of Rawls and Hauerwas, this paper will attempt to answer this question.

Regulating Religion: Rawls and Hauerwas on Religion’s Role in the Public Sphere It is difficult to think of two scholars who contrast each other (at least on a surface level) as well as John Rawls and Stanley Hauerwas do—they represent the devout democrat versus the faithful Christian, the champion of liberalism versus its skeptic, and the irreligious versus the religious. The major differences between Rawls and Hauerwas stem from the different spheres of society from which they have crafted

Spring 2013 their ideas and arguments. For instance, Rawls sought to construct his philosophy from the standpoint of an observer behind a “veil of ignorance” where the observer is unaware of what role he or she will inhabit in society (Sandel 150). Alternatively, Hauerwas situates his arguments about how the Church should operate within society in a Christian framework.

Although Rawls tries to create a philosophy that is unflinchingly neutral, by doing so, he has actually situated his philosophy in a non-neutral manner, namely through an explicitly liberal framework. Many religious individuals would argue that such a framework already disadvantages religion. In fact, Hauerwas highlights this criticism when he states that some Christian ethicists believe “Rawls’ theory threatens to destroy the individual ‘by depriving him of all those personal particularities that are the essence of being an individual,’” (The Hauerwas Reader 471). Hauerwas continues such criticism of Rawls in a different work of his by stating, “I see no reason that Christians (any more than Jews or secularists) should be asked to put their convictions in some allegedly neutral language in order to talk with one another” (A Better Hope 27).

In Rawls’ attempt to create a system based on neutrality and reciprocity, he presents his views on what should be required of public reasoning that seeks to instruct governmental policy. His requirements for public reasoning appear to strike a significant blow against religion’s role in society when he argues that comprehensive doctrines, religious or nonreligious, cannot be made the basis for deciding public policy matters (Boettcher 129). While Rawls later clarifies that these comprehensive doctrines can be utilized in public discussion in order to convey one’s approval or disapproval of certain issues, he reaffirms that they must be supplemented by political justifications that could be reasonably accepted by our fellow citizens (Boettcher 126). Rawls aims to stop religious justifications for policy based on the idea that such justifications are both divisive and not re-

ciprocal (“The Idea of Public Reason Revisited” 781).

On the other hand, Hauerwas presents a system that would protect religion from the encroachment of secular society. In Resident Aliens, he and his co-author present an argument that flies directly in the face of Rawls’ stance on public reasoning when they contend that Christian activism must stop translating its language into universal terms (Hauerwas and Willimon 37). Instead, they insist that Christians must couch their political arguments in religious language and teachings in order to preserve their Christian voice. As Hauerwas and Willimon explain, “activist Christians who talk much about justice promote a notion of justice that envisions a society in which faith in God is rendered quite unnecessary, since everybody already believes in peace and justice….” (37).

Hauerwas and Willimon aim to prevent liberalism from altering the church and its mission by asserting the importance of utilizing Christian beliefs in public discourse and political reasoning (Toulouse 175).

Hauerwas and Willimon’s argument directly contrasts with Rawls’ call for a more secular public political forum. This disagreement between Rawls and Hauerwas on the role of religion in the public sphere provides a solid foundation to begin discussing the opinions that each scholar might hold in respect to the Hosanna-Tabor v. EEOC court decision.

Hauerwas’ staunch defense of church identity and interest in protecting religious institutions from unwanted interference would lead one to believe that he would side with Hosanna-Tabor. Surely Hauerwas would value the ministerial exception because of its importance in insulating the church from secular pressures that might affect the mission of the church and its teaching of faith. Indeed, in a commencement speech at Goshen College, Hauerwas showed his strong support for safeguarding religion from government when he applauded the religious school for its refusal to hang American flags (The Hauerwas Reader 315). However, when one considers 67

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the details of Hosanna-Tabor, predicting Hauerwas’ position on the case becomes slightly more difficult.

For one, it remains questionable whether Cheryl Perich’s teaching position at the school should be considered a ministerial position. While Hauerwas would almost certainly support the religious institution in its employment practices if the employee were clearly a minister, Perich’s occupation with the Hosanna-Tabor Church and School was ill-defined. Even with her nebulous role as a minister (a label not explicitly used for her by Hosanna-Tabor until the law suit) at the school, Hauerwas still probably would have sided with Hosanna-Tabor given his views on law. As he explains, I support a Mennonite attempt to avoid using law courts to sue, but that does not entail that Christians are to avoid all contact with the law or are in principle prevented from practicing law. Rather, I understand the kind of restraint shown in not suing to be the condition necessary to help us find the means to be a more cooperative, virtuous, and peaceful polity. (The Hauerwas Reader 104)

Due to these views on law and Christianity, Hauerwas would have most likely been more sympathetic to the Church’s position in the lawsuit. Given Hauerwas’ reasoning for why he denounces suing (namely that it is disruptive to a “cooperative, virtuous, and peaceful polity”), it is possible that he would have found Perich’s lawsuit justified considering that it was sparked by the school’s administration attempting to force out an employee because of her disability. What could be less cooperative, virtuous, and peaceful than that?

Nevertheless, the idea that Hauerwas would reach this conclusion too is doubtful. In light of the nuances in this case, it is difficult to say for sure which way Hauerwas would have leaned, but taking into account his denouncement of lawsuits and the fact that much of his scholastic work defends the religious institution, it would be reasonable to say that 68

Hauerwas would have found the school to be justified. Even if Hauerwas would find faults with this particular case, he would certainly agree with the general precedent—protect religious institutions from laws that unduly burden them or are detrimental to their operation. In a liberal world constantly threatening to engulf the church in its secular views, religious institutions are the last refuges of Christian identity and conviction. By Hauerwas’ argument, this makes the church even more of a sanctuary—he would be greatly concerned if government were able to extend its reach to endanger such special status.

Determining how Rawls would have stood on this issue is comparatively easier. His views on how far a religious institution’s freedom extends under the law is both better documented and less liable to change on a case-by-case basis. In fact, in Rawls’ A Theory of Justice, he discusses his view on religion’s role in society and shows agreement for the idea that, “the aim of a well-ordered society, or one in a state of near justice, is to preserve and strengthen the institutions of justice. If a religion is denied its full expression, it is presumably because it is in violation of the equal liberties of others” (370). Rawls seems to allow for a society to restrict the freedoms of a religion so long as it for the sake of defending individual liberties. Additionally, Rawls’ philosophy emphasizes that “no limitation on individual liberty of conscience can be justified simply by a reference to doctrines of a particular religion” (Mandle 80). Rawls would likely adamantly oppose the Hosanna-Tabor decision on the basis that it represents a circumvention of individual liberties in the name of religion.

Furthermore, Rawls makes an interesting qualification in his prescription of public reasoning when he states that “the idea of public reason applies more strictly to judges than to others” because of their roles as adjudicators in society (“The Idea of Public Reason Revisited” 768). This qualification would seem to especially resonate with the question at hand concerning

Spring 2013 how Rawls would react to the Court’s Hosanna-Tabor decision. Although the U.S. Constitution necessitates that the Court take freedom of religion under consideration in the case, Rawls appears to be advocating for a shift away from such religious considerations.

Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay.

Other ministers sue for disabilities discrimination.

Many of these “ministers” have

been schoolteachers or non-ordained person-

Hosanna-Tabor: A Dangerous Precedent There are three implications of the Court’s ruling in the Hosanna-Tabor case that are particularly concerning. First, the decision marks a movement away from the Court’s previous attempts in such cases like these to weigh compelling governmental interests against the interest of free exercise of religion (“The Ministerial Exception”). Such disregard for how the decision affects governmental interests in terms of fair employment practices is especially problematic.

Even ruling that the interest of free exercise of religion exceeded the governmental interest in protecting employers from discrimination would have been more defendable than the Court’s refusal to even consider the importance of governmental interests in the case.

Second, the Court allowed far too wide of a definition for what can constitute an employee as a “minister.” This is not to say ministerial exceptions should not be accommodated. These exceptions are crucial in allowing churches to ensure that ministers embody the beliefs necessary for the honored profession; however, in order to justify applying these exceptions, we must be sure that these employees are just that—ministers. Cheryl Perich spent the vast majority of her time as a teacher at the Hosanna-Tabor Church and School in a nonreligious role—in fact, the United States Court of Appeals of the Sixth Circuit deemed that Perich’s occupation did not qualify as ministerial because she only spent “a sixth of her time on religion classes” (“The Ministerial Exception”).

In its current use, the ministerial exception is often abused at the misfortune of religious institutions’ employees. The exception can be used as a way to justify wrongful termination far too often. Leslie Griffin notes,

nel who did not realize they were “ministers” until their lawsuits were dismissed. (16)

There is something fundamentally amiss with an exception that forbids governmental recourse against religious employers for firing employees due to race, sex, or disability, especially when that exception permits employers to retroactively determine which jobs fall under the category of “minister,” regardless of the initial occupational title. This allows even more potential for religious employers to abuse the ministerial exception.

This raises the question: what dictates whether an employee is a “minister?” Is an employee a “minister” if the institution is religiously based, or is it when that employee is expected or encouraged to take on a religious role or lifestyle? It is the ambiguity surrounding this question that creates many of the problems. If it is indeed simply an institution’s expectation of religiosity from its employees that qualifies those employees as “ministers,” then what is to stop the Supreme Court from labeling Chick-fil-A employees as “ministers?” This might initially seem outlandish but when one considers certain Chick-fil-A practices, this idea finds some support. For instance, one of Chick-fil-A’s corporate purposes is listed as “to glorify God by being a faithful steward of all that is entrusted to us” (Gilgoff). What is to stop this purpose from being transferred to employees’ tasks in the corporations, thus making them “ministers?” In addition, Chick-fil-A heavily encourages employees to attend prayer services, restaurant openings involve prayer, and the company is closed on Sundays in accordance with its Christian founding (Gilgoff).

Although Cheryl Perich undoubtedly inhab69

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ited a position with more religious activity than the average Chick-fil-A employee, the bright line for what constitutes a “minister” remains to be seen. The Court should attempt to derive a more concrete test for what would qualify an employee as a “minister.” It is unfair and deceptive of employers to label employees as ministers only once there is a legal dispute in order to garner special benefits. If the Supreme Court can so easily clump a teacher who the school has never labeled as a minister before into this category, what is to stop it from happening to other, even less religiously involved employees? The Hosanna-Tabor case illustrates the danger posed to employee rights in allowing such a general definition of “minister” to persist.

Third, the Court’s decision is troublesome because of the importance it places on the religious freedom of institutions over an institution’s employees’ rights. The institution’s power over the individual—which this judicial ruling substantiates by empowering religious institutions to essentially disregard employment laws for any employee who they deem a “minister”—is a dynamic that draws strong parallels to the story of David and Goliath. That is, of course, if you omit the part where David triumphs and replace the stone he wields as a weapon with an unsympathetic judicial system most likely—but not necessarily—spearheaded by Justice Scalia. Sarcasm aside, the Court’s choice is puzzling to say the least considering that it had earlier stated in Employment Division v. Smith that “all citizens are subject to ‘neutral laws of general applicability,’” (Griffin 15). What, then, should permit institutions exemption from being subject to these same neutral laws? Indeed, the Supreme Court recognized that the “[American Disability Act]’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral act” (Hosanna-Tabor v. EEOC 2012). The Court continues that the distinction between the two cases is that Smith only involved the regulation of “outward physical acts” while the Hosanna-Tabor case involves interfering with “an in-

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ternal church decision that affects the faith and mission of the church itself” (Hosanna-Tabor v. EEOC 2012).

It seems disingenuous for a Court that purports to not lend judgment on the value of different religious practices (in order to avoid endorsing any single belief above another) to argue that restraining certain religious rituals (such as the ingestion of peyote) does not constitute interference with “internal church decision[s].” As Leslie Griffin rightly questions, “what could ‘affect the faith and mission of the church itself’ more than punishing individuals like Smith for participation in a religious ritual?” (16). It seems that the Court has been willing to sacrifice individual religious freedom, even when the freedom poses little to risk to society as a whole.

Alternatively, the Court staunchly defends the freedom of religious institutions even in circumstances where there is a compelling interest to defend the employees that are affected by unlawful discrimination.

Conclusion The First Amendment and the religious freedom that it guarantees are of the utmost importance to both the founding and continuance of this nation’s core ideals.

However, the Supreme Court decision in HosannaTabor v. EEOC goes far beyond the concept of religious freedom. Instead, it validates the exemption of religious institutions from national laws aimed at protecting citizens’ liberties. While the ministerial exception has merit in and of itself, the way that the Court has applied the exception in this case presents many problems to justice and the future of our legal system. In the Court’s attempt to protect religion, it relegates religious employees to a second-class status.

While it may be wise to permit churches particularly wide discretion in the initial hiring stage to ensure that institutions are not forced to hire ministers viewed as unable to preach the faith, it seems unwise to permit the church to force existing employees to forfeit many of the benefits and rights associated with being a citi-

Spring 2013 zen of the United States, especially when the adverse employment action has no origin in church doctrine and where the employee has minimal religious duties.

It would make sense that two opposing scholars, one an unapologetic liberal and the other a devout Christian, would clash over this question of religious freedom versus individual liberties. Rawls champions a society that seeks to create a level playing field for political discourse so that there can be reciprocity and understanding between citizens. However, this lofty ideal is not without fault; Rawls’ vision of public reasoning curtails the religious expression of community members with religious convictions. Hauerwas, on the other hand, champions the independence and freedom of religious institutions in an attempt to preserve the church in an ever-liberalizing world. While Hauerwas’ efforts are admirable, the preservation of the church’s identity should not come in the form of cases like Hosanna-Tabor where a private institution is given preference over civil liberties. In order for our nation to reach its greatest potential, religion can neither be silenced nor placed on a pedestal above the law. ♦

Works Cited Boettcher, James. “Public Reason and Religion.” The Legacy of John Rawls. New York: Continuum, 2005. 124-45. Print.

Critchlow, Donald T. The Conservative Ascendancy. Cambridge: Harvard UP, 2007. Print.

Gilgoff, Dan. “Chick-fil-A Controversy Shines Light on Restaurant’s Christian DNA.” CNN, 4 Feb. 2011. Web. 27 Apr. 2012. http://religion.blogs. cnn.com/2011/02/04/chick-fil-a-controversy-

shines-light-on-restaurants-christian-dna/.

Griffin, Leslie C. “The Sins of Hosanna-Tabor.”

Social Science Research Network. 25 Mar. 2012. Web. 27 Apr. 2012.

Hauerwas, Stanley. The Hauerwas Reader.

Ed. John Berkman and Michael Cartwright. Durham: Duke UP, 2001. Print.

Hauerwas, Stanley. A Better Hope: Resources for a Church Confronting Capitalism, Democracy, and Postmodernity. Grand Rapids: Brazos, 2000. Print.

Hauerwas, Stanley, and William H. Willimon. Resident Aliens. Nashville: Abingdon, 1989. Print.

“Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.” 132 S. Ct. 694 (2012). Lexis Nexis Academic Legal Research. Web. 23 April 2012.

Mandle, Jon. Rawls’s A Theory of Justice. Cambridge: Cambridge UP, 2009. Print.

McConnell, Michael W. “Free Exercise Revisionism and the Smith Decision.” The University of Chicago Law Review 57.4 (1990): 1109-153. Web. “The Ministerial Exception.” The New York Times 12 Jan. 2012. Web. 27 Apr. 2012. <http://www.nytimes.com/2012/01/13/ opinion/the-ministerial-exception.html>.

Rawls, John. A Theory of Justice. Cambridge: Harvard UP, 1971.

Print.

Rawls, John. “The Idea of Public Reason Revisited.” The University of Chicago Law Review 3rd ser. 64 (1997): 765-83. Print.

Sandel, Michael J. Justice: What’s the Right Thing to Do? NewYork: Farrar, Straus and Giroux, 2009. Print.

Toulouse, Mark. God in Public: Four Ways American Christianity and Public Life Relate. Louisville: Westminster John Knox, 2006. Print.

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