Terms of Moral Intervention: The Perils of Power and Profit

Our interventions in Iraq and Afghanistan differed greatly from one another. In Iraq, we sent in thousands of armed troops and directly governed the country during the transition period following the fall of Saddam Hussein. In Afghanistan, small teams of Special Forces and intelligence operators facilitated the overthrow of the Taliban by a band of Afghan militias known as the Northern Alliance, and a weak Afghan-led transitional body, called the Afghan Transitional Authority, managed the country’s emergence from war. In both situations, the host governments that eventually arose were thoroughly compromised by malicious actors looking to use government power to create centers of profit. The term “warlord” has become the classic moniker for these individuals, to connote the past experience that many have—particularly in Afghanistan—as the heads of anti-Soviet militias. Now, however, it more aptly describes the willingness of key individuals to use violent and illegal means to gain wealth and power.

In a recent article published as part of the Kauffman Foundation’s research series on Expeditionary Economics, I describe in detail the process by which organized networks can usurp government power, often using it to pursue their own profitable activities. Characteristically, in the period that follows the fall of a regime, a power vacuum arises wherein the governing authority is weak, at best, and nonexistent, at worst. Both allow space for nefarious actors to organize to enrich themselves. They may use their control over key transit routes, for example, to smuggle opium out of Afghanistan or oil out of Iraq. They may systematically evict the poor and weak from their property, selling or using it for their own financial benefit. Ultimately, they pursue a host of other profitable activities, frequently to the detriment of their fellow citizens.

Moreover, with their wealth and power, organized syndicates often will usurp government functions and institutions. The Afghan warlord Mattiullah Khan, for example, is rumored to have supplied private security forces to clients—including NATO convoys—traveling a dangerous highway through his territory. Many of Mattiullah’s forces not only wear police uniforms and drive police trucks, but are also heavily involved in the drug trade. In another example, an Iraqi political-military leader named Muqtada al-Sadr controlled the Iraqi Health Ministry for a long time in Iraq, and one of his operators who served as Deputy Minister of Health was arrested in 2007 for channeling government funds to Sadr’s militia (though charges were later dropped in a reportedly flawed case that allegedly involved witness intimidation).

Using government institutions for criminal activities is bad enough, but as they pursue profit, criminal groups also commit a host of deeply personal violations against their fellow citizens. The warlord-cum-police-chief Colonel Abdel Razik in southern Afghanistan is currently under investigation for permitting torture in the prisons he oversees. Other Afghan leaders have been accused of stealing land from the poor, leaving them homeless and exposed. In Iraq, various police units were thought to be tied to kidnappings that occurred during the rising sectarian violence.

In the Kauffman paper, I argue that there are strategic, legal, and moral reasons to establish strong law enforcement from the initial phases of an intervention. If the strategic goal is to build a strong government, we really have no choice but to support the establishment of strong law-enforcement institutions—one of the most visible forms of governance. Arguably, international law actually requires that governments provide adequate support to law-enforcement institutions.

The legal argument for supporting law enforcement comes from an intuitive moral impulse: that a government can be held responsible if it fails to provide adequate support to people who suffer serious violations of their rights. Yet, as fitting as this impulse might seem, its articulation is met with mixed reactions.

Over the course of the past century, many nations have voluntarily signed human rights treaties that recognize that their citizens are entitled to certain basic rights, and that those governments will take action in order to protect those rights. Of particular concern are the types of rights I mentioned above. Many of those treaties ensure that persons cannot be deprived of their life without adequate judicial process. They also recognize that a person cannot be arbitrarily deprived of his property. Moreover, they recognize protections for liberty and bodily integrity, asserting that it is a violation for a man or a woman to be kidnapped or tortured. For the most part, these protections apply to government actions—so a government cannot arbitrarily kill, steal from, or kidnap and torture its citizens. However, through a wave of legal decisions occurring over the last twenty years or so, many international courts charged with handling human rights claims have determined that a government also must provide adequate investigative and law- enforcement support to those who have been violated even by other private actors. Where governments do not provide adequate support, these courts hold, they are liable to the victims for damages.

The claim that governments are obliged to take reasonable steps in the face of injustice is both intuitive and defensible. How can a state’s promise to protect life, liberty, and property mean anything if the state does nothing when its citizens are being violated? On the basis of this reasoning, when a foreign government intervenes in a country, it either stands in the place of the former government (see Iraq) or must provide substantial support to that government (see Afghanistan and now Libya), insofar as host institutions initially will be too weak to enforce the law and protect the host country’s citizens from rampant criminality.

To say that intervening forces are obliged to support adequate law enforcement is not to encumber them with duties beyond their ability. It does suggest that policymakers who authorize interventions must be fully aware of their obligations to protect the basic dignity of those living in the nation where they intervene, and to engage the full range of activities necessary to facilitate a stable transition. Since it is clear that power vacuums easily follow interventions, the intervener must be prepared not only to overthrow the nefarious regime, but also to support the reestablishment of law enforcement that will ensure a new just regime, the growth of which remains free of corruption.

Lawyers will split hairs over the exact terms for the existence of an intervention. Such hair-splitting misses the truth behind the argument for intervention, though, and does a disservice to those who want to do the right thing in such a complex situation. Even if there were no technical legal obligation to provide the type of assistance I am describing, it seems apparent that a principled nation cannot tolerate violations where it is investing so many resources to help rebuild a country. In other words, it is morally indefensible to stand by while the people one initially sought to help still suffer so greatly.

Arguments about how to structure an intervention are only relevant for the next intervention. The time is long past in Iraq and Afghanistan to do things differently. However, now that the transition period has passed, we still must consider how we can alleviate the suffering of local individuals and counter rampant corruption and organized crime.

The same legal principles that require intervening forces to ensure the stability of law enforcement allow local victims, under the new government, to take civil action against officials and elites who previously violated their rights. As stated above, the government has affirmative obligations under treaties and international law to investigate and punish human rights violations. Since a range of rights violations stem from the corruption and organized criminality that is so common to interventions, citizens should be able to bring human rights claims against their government for violations they suffer at the hands of both officials and powerful criminal groups.

The legal basis for human rights actions that can counter corruption and organized crime rests in a range of treaties and domestic laws. Each country’s legal foundation is different, and so those who wish to attack corruption and defend against the violations of life, liberty, and property must pay special attention to the legal avenues available in their own environment.

The Afghan government provides a good example that illustrates this point. While the government has signed certain human rights treaties that recognize its citizens’ rights to life, liberty, and property, it has not signed the separate protocols that actually allow citizens to use international courts to enforce those rights. In other words, the Afghans acknowledge that these rights exist, but they do not provide access to international remedies for rights violations. Although the Afghan constitution provides access to Afghan courts for these remedies, those courts are frequently as corrupt as the government institutions being sued. Thus, the question of how to create adequate remedial institutions is critical. The answer to that question is more nuanced, but the ultimate lesson is that every country has signed different treaties and protocols, has different constitutional and statutory frameworks, and poses different institutional and cultural challenges.

In the case of Afghanistan, the international community could pressure the Afghan government to sign the additional protocols necessary to provide access to international courts. It could also offer direct support to NGOs and other organizations that could help Afghans bring suit to defend their rights in their own courts. In other countries, the most effective approaches may be different, and interventions and international aid must be sensitive to those differences.

Language surrounding the need to intervene in places such as Afghanistan or, more currently, Libya is often laced with terms of moral obligation. Whatever state exists prior to the overthrow of a tyrannical regime, the international community must take firm steps to ensure that it is not simply replaced with a different tyranny of rampant corruption and criminality. That obligation requires strong law enforcement during the transition and assistance to the vulnerable in fighting powerful and malicious actors who seek to prey on their weakness.

Brock Dahl is an associate at the Palo Alto office of Wilson Sonsini Goodrich & Rosati, P.C. He previously worked for the U.S. Department of the Treasury in Baghdad, Iraq and on the Afghanistan Interagency Operations Group. His writings and media appearances have focused on national security, international law, and cyber security issues. The ideas in this article are drawn from a longer work he recently completed for the Kauffman Foundation’s Research Series on Expeditionary Economics. The views herein are solely those of the author and do not represent the opinions of any current or former employers.