After Mr. Intelisano’s intervention dedicated mainly to the specificity and problems of domestic law, I deem it necessary to linger on some aspects of international law that are, however, quite close to the strategic context of the missions at issue: in fact no serious juridical survey is possible without bearing in mind the strategic context and no serious strategic analysis can be carried out without considering the juridical aspects. In this respect, I agree with Carl Schmitt, or at least I adhere to his dislike for attempts at “juridicizing” policies and strategies, that is subordinating it entirely to the law and transforming it into a sort of public administration of international relations. I shall divide my intervention into three very brief parts: First, I shall examine the juridical grounds of the MSU missions from the viewpoint of international law, especially in view of interpreting the gradual broadening of tasks, from the first MSU to the last, already mentioned during this seminar;
Secondly, I shall deal with certain juridical aspects of multinationality, with particular reference to the specificity of the divisions at issue; Lastly, I shall conclude by trying to draw indications from the international strategic context and examine the development guidelines and critical points needing a doctrinal in-depth analysis in both juridical and strategical terms.
2. Juridical Grounds
a.MSU Bosnia The juridical grounds of the MSU mission in Bosnia are in no way different from that of the other NATO forces as a whole and must therefore go back, through a historical succession of events, to the December 1995 Dayton Agreements established in the 15 December UNSCR 1031 providing for the TOA (transfer of authority) between UNOROFOR and IFOR, as well as to the 12 December 1996 UNSCR 1088 that sanctioned the legal succession between IFOR and SFOR, after the peaceful elections in Bosnia that undoubtedly changed the legal nature of the mission. We must bear in mind that SFOR’s force was almost half that of IFOR and had the essential task of guaranteeing domestic security as established by Annexes 1A and 2 of the Dayton Peace Agreement. The creation of the MSU fits into a further reduction of forces started by NAC on 20 February 1998 in view of the June 1998 deadline for the SFOR mandate, later extended by the 15 June 1998 UNSCR 1174. General Leso and Colonel Coppola shall certainly remember that in May 1998 I too was involved in the preparation of the first MSU, which was giving rise to the melting pot in Gorizia. On 28 May 1998 the NAC announcement proclaimed “the creation within SFOR of a MSU, with the same mandate of other SFOR elements, to enhance SFOR’s ability to support local authorities (…) without engaging in police functions”.
Here we see a first interesting point that tells us that the MSU’s mandate is much the same as that of other SFOR elements, from which it differs only for its specialization that gives it the opportunity to be more efficient and more measured in crowd and riot control tasks, whereas police tasks remain the responsibility of IPTF: however, it is not by chance that many resolutions of this period refer explicitly to the need to enhance UNO IPTF performances and this is an obvious sign of the fact that the latter showed some failures. I would here like to go back to what Prof. Zaccaria said regarding the economic aspect of this mission and the economic productivity of the relative costs. I am not optimistic enough to think that in a year the MSU can halve the entity of contingents and cancel it altogether in two years’ time. However, this is an aspect of the MSU, linked to their institution, which cannot be ignored: I mean that, thanks to the specialization of the forces, it may be possible to save in terms of generic forces or forces having other specializations, on the entire mission: this is the meaning of what President Clinton said in his report at the 5February 1999 USA Congress when he spoke of the MSU in Bosnia as a “multiplier force”.
b. MSU Kosovo I shall not speak of the April to September 1999 Allied Harbour operation of the MSU as I do not consider it particularly important. It is interesting, however, to concentrate on the MSU that joined the Joint Guardian operation in Kosovo, which began on 12 June 1999 and was legitimated by the UNSCR 1244 of 10 June 1999. The interesting thing about this resolution is that it accepts and adopts, as the basis for the solution, the principles established in Petersberg on 6 May previous to the G-8 Foreign Office, incorporated as annex 1 of the resolution. Annex 2 is also negotiated outside the UNO, as in sum it is the document agreed upon on 2 June 1999 between Milosevic and President Ahtisaari in representation of the EU. The mentioned annex 2 further specifies the above principles and adopts the customary bipartition between international civil presence, managed by UNO to generate the interim administration of the province, and international security presence, under NATO responsibility to ensure a safe environment and guarantee a safe return. Mention must be made of the fact that the prerequisite of the NATO military mission is the Military Technical Agreement signed between NATO and the Yugoslavian Commanders on 9 June 1999: however the UNO resolution does not specifically refer to this agreement though it represents the true and proper juridical basis of the NATO mission.
As regards the resolutions adopted for Bosnia, paragraph 9 of the UNSCR 1244 explicitly extended KFOR functions to guarantee public order and security until the UNO were in the condition to take care of it. This is the obvious result of the deep difference in the actual situations: in Bosnia, though in serious difficulty, there was some sort of a sovereign State. Conversely, in Kosovo, despite the existence of a sovereign State (the Federative Republic of Yugoslavia), acknowledged by the UNO, the mission required a sort of suspension of this sovereignty and thus the exercise of substitutive powers, including the possibility, attributed to the UNO Secretary General Representative, to issue its own Regulations, that is true and proper legislative acts. In fact, the extension of the MSU tasks had already been carried out in Bosnia: however, allied regulations are rather slow in understanding what is going on in the field, so much so that in 2000 the AJP-01 (B) publication, not yet effective because still not ratified by Member States, explicitly mentions these cover tasks that are conceptually implicit in most crisis response operations.
c. MSU Iraq Compared to the above, the MSU in Iraq is considerably different. It is similar to the Kosovo one in that the sovereign State is absent, suspended by a substantial debellatio, and thus for the fact that substitutive tasks tended to expand. However, contrary to the Kosovo one, the MSU in Iraq cannot be placed, at least not yet, within a NATO mission and thus we could debate on the timeliness of having extended to that theatre, at least as regards the denomination, an operational concept that is a NATO trademark, though with a clear Italian predominance. In this respect, I tend to give considerable importance to denominations and am against calling deeply different units and missions by the same name. Gustave Le Bon used to say: “most of our opinions are formed by words and formulas” and it would be better to avoid confusion on opinions and the way situations are perceived.
Actually, the presence of a multinational contingent formed by the contribution of the countries whose representatives’ interventions we listened to with great interest today, appears unsuitable, in the context of a national contingent. Usually, it is the national contingents that join bigger multinational contingents. However, the multinationality of the MSUs in Bosnia and in Kosovo stemmed from the fact that they were an operational support of NATO multinational commands, designed to operate in the sectors under the responsibility of every country’s national contingents. The UNSCR 1483 of 27 May 2003, later confirmed by the UNSCR 1500 of 14 August, acknowledges and encourages the contribution of member states that are not occupying forces to the stability and security of Iraq under the responsibility of the Coalition Provisional Authority, which cannot but identify with the occupying Powers. The United Nations trace the grounds of the occupying Powers’ powerduty to guarantee the stability and security of the country to the existing Conventions on the issue of military occupation and particularly to the regulation annexed to the IV Convention of The Hague of 1907 and to the IV Geneva Convention of 1949.
Moreover, ever since the UNSCR 1472 of 28 March 2003, at the height of war operations, the Security Council reminded the USA and the United Kingdom of the duties deriving from the quality of the occupying power, though specifically limited to the field of provisions and medicines for the occupied population. Art. 43 of the regulation annexed to the IV Convention of The Hague of 1907 states that: “when the authority of legal power is passed into the hands of the occupier, the latter will take all the measures he can to re-establish and guarantee, as far as possible, public life and order, respecting, bar some absolute impediment, the laws enforced in the country”. The activity of USA and UK occupation contingents and of national ones as well that, without being occupation forces (which Security Council resolutions explicitly acknowledge), contribute for humanitarian reasons to re-establish the conditions for an orderly civil co-habitation, must be referred to the above basic law. In this way a true and proper delegation is achieved. Therefore, if the legitimation of the MSU in Iraq as regards domestic law must refer to art. 5 of Decree 297/2000, as well as to the legislative acts authorizing the mission, at an international level, as stated by the United Nations, the legitimation has to be referred to the existing laws regarding armed conflicts.
Actually, the UNSCR 1511 of 16 October 2003, after having underlined the transitional character of powers and responsibilities of the Iraqi Coalition Provisional Authority, authorized in paragraph 13 “a multinational force under a unified command to take all necessary measures to contribute to the upkeep of security and stability in Iraq”, and urgently invites member States to contribute with military forces to this force, whose mandate is scheduled to last a year at most, unless (paragraph 15) the transfer of powers is completed earlier. Paragraph 16 of the same resolution underlines the importance of establishing efficient Iraqi police and security forces to maintain law and order and fight terrorism. Lastly, mention must be made of the UNSCR 1483’s reference to the safeguard of the huge Iraqi cultural heritage (“Stressing the need for respect for the archaeological, historical, cultural and religious sites, museums, libraries and monuments”): the safeguard of this heritage, according to articles. 4 and 5 of The Hague Convention of 1954 on the safeguard of Cultural Heritage in the case of an armed conflict, falls under the responsibility of the occupying Power. Thus the Carabinieri MSU, as far as its competence allows, takes care of the above, even by employing specialized personnel from the artistic Heritage Safeguard Command.
3. Preliminary Conclusions
The above explains the impossibility of identifying uniform juridical grounds for missions of the MSU type, domestic law excluded, the need for specific parliamentary deliberations and the mutual reference to art.1, paragraph 1 of law No. 331 of 14 November 2000 and art. 5 No. 297 of 5 October 2000 regarding the reform of the Carabinieri Corps. At an international level, beyond any debate over the nature of the United Nations and the lawfulness of previous war operations, an MSU type mission, with accentuated competencies regarding public order and security on the territory of another State, would seem to require the consent of the sovereign State (seen with suspicion by the internationalist doctrine), that is, a Security Council resolution, which in fact has always existed in the three cases examined. As regards the nature of the MSU mandate, it does not seem any different from that of other military departments, except for its specialization: moreover, it seems obvious that in the context of a military force each specialty is left to do what it does best: helicopter pilots fly, engineers remove mines, police officers and Carabinieri do what they normally do on the national territory.
The problem is that this specialization actually presents specific demands that connect “police” tactic activity such as patrolling, check points, territory control and local police corps training, to an appropriate and complete knowledge of the situation, and thus to local intelligence. In sum, the MSU job cannot be carried out without the full availability of information and freedom of action to obtain it, as well as a strong connection between field and strategic intelligence; this point, moreover, unites many PK missions and is strongly highlighted in the 2000 Brahimi report. Recently, at a CASD conference, an influential source such as General Cucchi stated that peacekeeping missions require authority and knowledge. I fully agree. It is obvious that as regards authority the MSU component has little to add, but as regards knowledge, its contribution is inestimable. It is moreover evident that such an added value in terms of knowledge can certainly not be improvised.
4. Juridical Aspects of Multinationality
“Multinational is beautiful” especially in public imagination. This is somewhat true if we consider that multinationality somehow increases the legitimacy of a mission, for the very fact that it is shared and in as much as each national contingent is in a position to contribute with its specificity, which can undoubtedly be an added value in terms of competencies, knowledge and skill. However, mention must also be made of all the difficulties typical of every multinational contingent, on which public opinion is unfortunately rather uninformed, starting from language difficulties, the interoperability of weapon and radio communication systems, to the differences in doctrine and training, the different political perception of situations and the possible difference in the ROE. To the above difficulties we can fairly well add those of a juridical nature that, though typical of every multinational military contingent, acquire greater importance when referred to the MSU, as Mr.Intelisano has just highlighted. Worthy of further examination is the fact that the law applicable to armed conflict situations in general is losing the universal vocation it had in the past, both by the adoption by practically all the States of several sources of common law and thus of jus cogens, and by ratifying the different Conventions, especially the 4 1949 Conventions.
Starting from the1977 Additional Protocol I and II up to the Ottawa Convention on the banning of anti-personnel mines and the Rome Treaty establishing the CPI, many are the sources that have not been ratified by many countries that, in terms of population, surface area, exposure to becoming a conflict theatre, surely cover most of the planet. Further, beside the Rome Statute that admits no reservation, ratifications to Protocol I and II are fraught with reservations and this give the law applicable or applied by the different contingents a “variable geometry” that can but herald consequences as each contingent will have to cope with different juridical restrictions regarding what it can and cannot do. These difficulties are even more serious when it is a matter of carrying out an activity that can be assimilated to a police activity: this is a sector that a different training and a different juridical sensitiveness affect more than others. There are deep differences, and not only between common law and civil law countries, but also among countries such as Italy and France, which are juridically similar as regards the actual manner in which police activity may be carried out and where common points are really few.
Among the latter the “UNO Code of behaviour for those responsible for applying the law” and a few others, including the main tools on the issue of human rights. As regards the latter, there is the delicate problem of setting limits and extensions to the applicability of such tools in the face of an armed conflict. As well known, in the recent past we could clearly see a trend towards the final meeting point and unification of Human Rights Law and International Humanitarian Law. In this respect, last September the Humanitarian Law International Institute in Sanremo dedicated a Congress to the issue. Nowadays there are indications of a tendency to re-define them, as I believe appropriate, by what a jurist would define as a quaestio finium regundorum, which moreover cannot be based simply on the fact of whether there is an armed conflict situation. However, the common normative references for police activities remain substantially few: this is why two things are absolutely necessary, besides the obvious desire to reach harmonization as soon as possible, at least in European ambit: first of all, that common references be set, at a minimal level, by agreements among the countries contributing to the MSU, and secondly that the MSU as a whole may always maintain a net predominance of a country, as has so far occurred for Italy, otherwise it risks becoming ungovernable.
In this respect, a thorough analysis of the functioning modalities of the different international civil police contingents, as for instance that of the IPTF, would be very instructive. On this issue the Brahimi report, though from a different viewpoint, maintains the need for doctrinal changes, that is “doctrinal shifts”, in the use of civil police units of the UNO missions: however, the Brahimi report continues to dichotomously distinguish between military contingents and civil police ones and does not seem to understand (it is the year 2000) the added value that units such as the MSU can supply because of their integration in military contingents. However, the diversities in the juridical approaches of the single problems an MSU may have to face are far less within the European Union, and in this respect, as they fall under the Crisis Response Operations as provided for by articles 40 and 210 of the Draft Constitutional Treaty, we cannot but wish the success of the recent French proposal, under negotiation, to establish a European Gendarmerie Force, which could not but graft onto the MSU experience.
5. International Context
The most interesting aspects of today’s debate regard the indications that may be drawn from the international context, to be considered from both the strategic and the juridical viewpoint: aspects that can in no way be split because the changing strategic context necessarily affects the juridical interpretation of the events of our age. The collapse of the Berlin Wall and, 12 years later, the 11th September event tragically highlighted the deterrence crisis, understood in its most traditional meaning. The decade between these two important events saw a turmoil of attempts at a strategic interpretation, in a model producing key, substitutive of bipolar models that had till then not only guaranteed world peace, but had also allowed a series of juridical constructions that melted into the bipolar world and which have since been undergoing a crisis: from the utopia of Fukuyama’s end of history opposed to Huntington’s “Clash of civilizations”, to the State chaos foreseen by Brezinski in a volume of 1993 titled “Out of Control”. Before our eyes lies a world governance crisis of the kind foreseen decades ago by Carl Schmitt. In the face of the above traditional interpretation tools, strategic and juridical above all, appear inadequate: in fact there is a great confusion both in the field of strategy, where there is a sure shortage (in quality rather than quantity) of analyses and things proceed tentatively, and in the juridical field, where we attend articulated debates concerning both the jus ad bellum (the debate on preventive attacks in the light of paragraph 5 of the USA National Security Strategy of 20 September 2002 is an example of this), and the jus in bello even in its most consolidated aspects such as the acknowledgement of the legitimate combatant status. International instability and terrorism are the tenet aspects of the present situation, mutually related and accidentally linked together.
In this context, post conflict peacekeeping and stabilization missions cannot but face both. Article 40 of the European Draft Constitutional Treaty explicitly acknowledges this in stating that such missions contribute to the fight against terrorism. The tragic event in Nassiryia, and not only that, confirms that the MSU will ever more have to cope with terrorism. In post conflict situations a certain dose of terrorism appears substantially structural and the delicate juridical problem arises as to whether to differ terrorists from legitimate combatants, in its broader meaning not peacefully introduced by art. 44 of Protocol I to be read together with art. 1 Paragraph 4.
Actually all these sources are obsolete because they do not consider the basic development that international and transnational terrorism experienced in recent years and which reached its peak on 11 September in New York. If, as the recent, tragic Spanish experience confirms, it is true that the participation in Crisis Response Operations and Peace Support Operations in certain theatres can increase a country’s exposure to threats and terrorist attacks, it is likewise true that a military presence, in the same theatres, if timely modulated, can be a formidable tool in the international fight against terrorism. There are two reasons for the above: the first, generally valid for those states that usually maintain a high international profile, is but the transposition, with the due adaptations, of the classic British strategy to wage wars on the European continent, or even farther, to keep wars far from the island: this strategy has in some way affected the strong proactive approach adopted by Anglo-Americans after 11 September.
The second reason is that nowadays the branches of international terrorism and specially of a reticular organization as the one set up by Al Qaeda and its associates, can be traced far back, particularly as regards determined contexts. In other words, the ones in our country are often only logistic terminals of terrorist branches that acquire a far bigger consistency in these theatres, and which must surely be investigated with intelligence tools, which have a far greater chance of success when supported by a military presence on the site. Fighting terrorism is thus a natural task of the MSU, even excluding the undeniable fact that defeating terrorism in the theatres that need to be stabilized is a conditio sine qua non for the success of the stabilization. The fact that counter-terrorism in the operation theatres must be the primary, though not exclusive task of the MSU appears from the fact that in every national contingent each component must be given the task for which it is designed; the fact that counter-terrorism in the theatre is the job of the Carabinieri seems obvious, both because they already do it in Italy and because there may be investigative returns liable to trigger new inquiries, or connect to other ongoing investigations in Europe and Italy, in which the ROS are experts.
6. The above as far as terrorism is concerned
Instability is the second factor. By this we mean that there will be an increasing need of MSUs, compared to the low number of States apt to form them, as recently observed by USA ambassador to NATO, Mr.Burns. This should lead the Carabinieri Corps to study an order allowing, in emergencies, the projection of a higher volume of forces into the theatre, that is an order that, without subtracting anything from our domestic coverage, would be less affected by the restraints set by being anchored to the national territory: it being understood that the decision to increase this projection each time, to the prejudice of the homeland, cannot but be taken up at political level. It will however have to be a decision between two options made possible by an order allowing it, and not a non decision without an alternative suggested by an order that does not allow such a bigger projection.
Considering the possible proliferation of MSUs, particularly in certain theatres, there is a need for specific investments in terms of weapons, equipment, special vehicles, perhaps specially conceived for the task, so that our men can have the best and not only means taken from the very different necessities of the multinational service on the national territory: in this respect, I was very impressed by Professor Pasqualini’s remark regarding the inadequacy of our special sanitary equipment for diagnostic investigations. However, instability will have to be considered carefully also as regards the ongoing missions where we will notice an increasing volatility. In the theatre the situation can develop rapidly and this may actually lead to an evolution of operational techniques as well as of the ROE and the mandate itself.
The change in the nature of the missions in the field that has given rise to the consistent literature on the mission creep, is something to be borne in mind and that requires two basic political-military conditions: On the one hand, promptness and adherence in deciding the time for deliberations of a purely national political nature; On the other hand, considering the multinational features of the MSU, a close and prompt international concerted action designed to obtain the same adaptations by the political authorities as the other participating nations. Lastly, we must carefully consider the increasing attention of the international military and strategic doctrine to the establishment of divisions of the MSU type not only in the context of PSO or CROs, but of operations such as those within the NATO defined by art. 5, when such measures somehow include military occupation of hostile teritories, though over a short period: actually, the fact that military occupation in Iraq had not been carefully planned is one of the main criticism regarding the USA Administration, both from the inside and from related ambits. For instance, a recent article by James Glassmann appeared on the Internet site of the American Enterprise Institute said that the Pentagon’s plan was excellent, but had been outvoted.
I also remember an USIP (United States Institute for Peace) study of April 2003 that, drawing from the MSU and Carabinieri experience, proposed a SCPU (Special Constabulary Police Unit) for Iraq of about 2,000 units and a Civil Police of 4,000 units, for a total amount of 6,000 men and a cost (for personnel alone) of 600 million dollars a year.
In order to properly assess the present and future role of MSU missions, we have to consider the fact that the difference between domestic and international security is increasingly fading: this is an epochal phenomenon of which neither the strategic nor the juridical doctrine are fully aware. It is true that in the past, the two forms of security were inseparable and that even in the most symmetric international conflicts the domestic front gathered momentum before the frequent attempts of each conflicting Party to achieve asymmetry by generating or exploiting cleavages, upheavals and other threats inside the opposing front. However, what occurs today is a completely new phenomenon: in the light of the contextual, gradual evanescence of almost every national sovereignty, there is a substantial globalization of threats to security understood in its entirety of domestic and external security, a sort of “civil world war” already foreseen by Schmitt as the final outcome of the gradual deterritorialization of both strategies and the juridical order. This may be somewhat difficult to understand and future developments are still to be explored. There has not always been a difference between soldiers and policemen: it is the result of the functional specialization, or institutional differentiation, around which in the sixteenth and seventeenth centuries modern states were formed and that, at an international level, found its higher expression in the Westphalia Treaty.
Such a differentiation stems from social, economic and juridical developments and, above all, those regarding the art of war: however, some European organizations, especially those marked by a Napoleonic experience, still have a trace of the original undifferentiation of the Gendarmerie establishment, that is of military corps generally formed by veterans, that is by soldiers differentiated for their behaviour and wisdom, tasked with domestic order and security. It is time to wonder whether this development cycle has ever ended and whether some other cycle has already started where even military operations, including war, take on the features of police operations and are, often defined as such, whereas many police operations take on the features of true and proper war operations. I am not saying that a policeman and a soldier’s job are destined to be confused and re-united: moreover, the increasing technical specialization of both would not allow it. However, it is possible that a gray area will arise where both competencies will be drawn together because of the substantial undifferentiation of the threat to domestic and external security.
The above gray area may task institutions such as the Carabinieri Corps with particularly important roles due to the fact that they carry out both capacities and are thus the ideal linkage between organizations designed for one type of security and those designed for the other kind both on the national territory and in far away operation theatres, also through the experience that is being tryingly gained as regards the MSUs. Thank you for your attention.
(*) - Major General of the Carabinieri Force, Chief Assistant at the “I.A.S.D.”.