"Untying Gordian Knots: Transitions, Crisis Management and Legitimacy of State Power", Lecture by Dr Danilo Türk, Former President of the Republic of Slovenia at the Paul H. Nitze School of Advanced International Studies (SAIS)

Washington D.C., 16. 9. 2013 | speech

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INTRODUCTION

These days all eyes are set on Syria. The Framework Agreement for Elimination of Syrian Chemical Weapons, reached last week between the US and Russia brought a glimmer of hope. The hope is that the Agreement would open the way not only to the elimination of chemical weapons but also to restarting the Geneva Process for peace and transition in Syria. There are very good reasons to make every effort in that direction. Global diplomacy and the UN are put on an important test.

However, progress in the area of weapons of mass destruction does not guarantee success in the search of political solution. The viability of political process and the possibility to reach a stable solution depend on many factors, including the participation of all significant players in the process, their readiness to seek an agreement and their ability to devise clear and realistic steps in the transition in Syria. If the outcome is to be a stable and durable solution, it will have to be accepted as legitimate by all the main actors within Syria, in the region and globally.

An idea how this process would look can be found in the Final Communique of the international Action Group on Syria of 30 June 2012. It offers a general framework for the steps needed, including the establishment of a transitional governing body with full executive powers, a national dialogue process, a review of the constitutional order and free and fair multi party elections.

Elections are defined as the final point and the key to legitimacy of the state power. In practice they are often considered as the sole legitimizing instrument of political power and a »fast track to democracy«. However, in handling a bitter armed conflict and a humanitarian crisis it is necessary to take a deeper look into the question of conditions for legitimate state power and for a durable and peaceful solution.

SOME GENERAL THOUGHTS ABOUT LEGITIMACY OF STATE POWER

n democratic national systems of governance it is normal that legitimacy of the government is established by free, fair and periodic elections and that it is maintained by the respect for rule of law and human rights as well as the expected levels of effectiveness of government.

However, in many situations, things are more diverse and more complicated:

- In specific situations, different and competing sources of legitimacy can play a role. That competition often decides on the nature of government. The experience of Myanmar/Burma is a case in point.

- International circumstances may favor a particular type of legitimacy. Different sources of legitimacy may have their own international allies. Religious and ethnic identity can be as powerful as democratic principles.

- Force, including armed force plays an important role in political transformations. It may strengthen or weaken the otherwise prevailing source of legitimacy. However, armed force alone cannot ensure legitimacy and durability of government.

- Given that peaceful change is preferable to military outcomes, it is necessary to take the issue of constitutional framework of transition very seriously. The key task here is to ensure an adequate basis for the legitimacy of government arising from transition. This may require an almost artistic work to define the right combination of the factors of legitimacy for the future constitutionally established government.

SPECIFIC EXAMPLES

The first trio: Poland, Slovenia and Egypt

Poland

Let me start with a personal memoir. On 10 December 1988 an interesting crowd gathered in Paris, France. The occasion was the celebration of the 40th anniversary of the Universal Declaration of Human Rights. I was among the many human rights activists invited for the event. As we gathered for the official dinner offered at the Elysee palace by President Mitterand, I was unexpectedly approached by the main stars of the gathering: Lech Valesa and Bronislaw Geremek.

Geremek translated the following message from Walesa: »We, in Poland are determined to replace the communist system which already lost its legitimacy with a new democratic system. We realize that this will not be easy but we shall do all that is needed to ensure genuine elections in Poland next year (1989). It would help if we were not alone. As we look around the communist world, we see Yugoslavia as the closest to transition. Please talk to political leaders in your country to accelerate change. Change is coming but it has to be managed carefully. The more of us participate in it, the better«

This was December 1988. As we know, in the following February, the Round Table process was started in Poland. In a few months it developed a legal framework for change. H0owever, in this context, an important compromise was necessary. Elections held in June 1989 guaranteed one third of the seats in the Parliament for the Communists, one third for the other already existing parties and one third for the new forces. So, elections in June 1989 were not fully democratic. The new Government was established in September under the Prime Minister Tadeusz Mazowiecki. This was a decisive albeit not yet the definitive step in the process of transition. By the end of the year the Berlin wall fell and East Europe was already on the track of an irreversible change. However, the process was gradual. In Poland free elections have been conducted since 1990, a substantial constitutional amendment was enacted in 1992. A new, democratic constitution, which defined the nature of democratic Poland as we know it today, was adopted in 1997; almost a decade after the first and decisive steps in the gradual process of change. Negotiations, compromise and gradual change were the characteristics of the era.

Slovenia

The notion of gradual change brings me to the case of Slovenia. When I returned from Paris in December 1988 I contacted several political leaders in Slovenia and suggested to them to establish direct communication with the leadership of Solidarity movement in Poland – either at the level of the Yugoslav federation or at the level of Slovenia. They were reluctant. They believed that the peculiar political system of socialist self-management would suffice as the framework for the necessary change. So, Walesa's initiative fell on deaf ears. However, the events of 1989, the annus mirabilis in Europe, produced a new course of change. In Slovenia, new political parties started to emerge. The economic and political situation in then existing Yugoslavia worsened. The need for a fundamental change became obvious and the public opinion turned decisively in favour of fundamental change.

In September 1989 the Assembly of the Socialist Republic of Slovenia adopted a series of constitutional amendments which opened the way towards democratic elections in April 1990. The elections produced a three chamber Assembly, still structured by the existing socialist constitution but with the deputies from already existing political parties. New government was formed and the Communists became part of the opposition. In the following year, 1991, Slovenia declared independence. Slovenia had to fight a short war, gained international recognition in the subsequent months and at the end of the year adopted a new constitution. New electoral legislation followed in 1992 and new elections in December of the same year. The process of these key steps in the political transformation took little less than four years.

Two fundamental features of the two mentioned processes of transition need to be emphasized here. First, the importance of inclusiveness. The process of transition has to be open to all political forces of a country.

Exclusion leads to resentment and to political instability. Furthermore, inclusiveness requires not only political organizations – new political parties and leaders - but also well-developed media and an adequately educated electorate. In East Europe public debates, especially those on TV played a critical role in a peaceful confrontation of ideas, articulation of options and in the identification of political leaders. Needless to say, the subsequent process of constitutional change had to be inclusive. Drafting of a new constitution is not a technical operation which a small group of learned lawyers can perform. The constitution must be genuinely accepted by the people. Therefore it is necessary to take sufficient time for it to ripen. In Slovenia it took almost four years and in Poland almost a decade.

The second feature is the role of the head of state in transition. After the Polish parliamentary elections of 1989 Wojciech Jaruzelski, who had been the president since 1985 was re-elected by the parliament in 1989 again and served until the end of 1990. Election of Lech Walesa as the new president in 1990 was an important step in the political transformation of the country.

In Slovenia the role of the president in the process of transition was specific – and important. The first democratic elections of 1990 which were held within the institutional framework of the Socialist Republic produced not only a new Assembly but also a collective, five member Presidency. The new »collective head of state« included all the main political currents of transition. It proved to be effective in negotiating the most sensitive decisions needed during the early period of transition and added to the sense of political trust and legitimacy of the process. This was particularly important because Slovenia had to fight a war for defense of its independence in 1991, a year after the first democratic election. The Presidency, as commander in chief, had a critical role, in particular in decision-making necessary for an early and effective ceasefire (after less than two weeks of active armed confrontation between the Yugoslav (federal) army and the Territorial defense forces of Slovenia). This allowed the rest of the process towards international recognition and establishment of the new constitutional system peacefully.

Egypt

Are these experiences of Poland and Slovenia – country specific as they are – relevant for the analysis and advice related to the situation of Egypt? The answer is yes, with the obvious caveat not to overstate the lessons learned. In this opinion I am encouraged by another personal experience.

In the late February 2011, after a couple of weeks of demonstrations at the Tahrir Square in Cairo, I telephoned Mohammed el Baradei whom I have known from many years in the UN. He told me about his worries of the time and of his vision of the necessary steps to ensure the legitimacy of transition. Later on, he expressed those views in an op-ed piece in the Financial Times (published on 23 February 2011 under the title »My vision for the next phase of Egypt's revolution«).

The main elements of El Baradei’s thinking of that time, which also coincided with my own understanding of the relevance of the East European experience for transition in Egypt were the following:

- The path towards democracy must be inclusive;

a provisional

- A three – person presidential council, consisting of two civilians and one military, should be formed to lead the transition.

- There should be a caretaker government of highly qualified people to provide the continuation of basic services.

- The transitional arrangement outlined above should be for at least a year which would allow the political parties to organize.

- The final arrangement would be an inclusive »a civil - not a religious - state«, one which would include Muslim Brotherhood as part of the democratic political process.

This was the vision »shared by a robust majority of Egyptians« as El Baradei put it at the time. Following our conversation I summarized the experience of Slovenia in a short paper I sent to him in Cairo. It is striking how clearly certain fundamental requirements of legitimacy characterize different processes of transition. They are:

1. Inclusiveness of the political process;

2. Careful preparation of a new constitution over a longer period of time; and

3. The role of the head of state.

In the case of Egypt in 2011, the idea of a collective head of state, a three member presidential council made good sense. It would have inspired collective trust that Egypt is moving in the right direction and that Egypt's powerful army would be on board as a guarantor of security during transition. In a paradoxical way this idea of collective head of state was realized later, with Adly Mansour as the new interim president, Mohammed El Baradei as a member in charge of international cooperation and the military as a de facto and decisive member of the collective head of state. Unfortunately very soon after, the legitimacy of this arrangement – as well as of the entire phase of transition started on 3 July 2013 - became questioned, as a result of the use of military force within Egypt.

Many things went wrong in Egypt since February 2011 and the overall mismanagement of transition had to do with inadequate legitimacy of the key steps in the process:

2. The parliamentary elections were too early (November 2011 – January 2012). This gave an artificial advantage to the better organized Muslim Brotherhood and marginalized the other groups.

3. The presidential elections were held on 23-24 May 2012, prior to the adoption of the constitution. This sequence was problematic. A president elected in such circumstances cannot have the full legitimacy – it has to be earned with inclusiveness and extremely careful management of transition issues.

4. The constitution was adopted soon (six months) after the presidential elections, on 30 November 2012. Its preparations were not fully inclusive and it lacked support of all the relevant segments of society.

5. President Morsi's reign before and after the adoption of the constitution to create a deep sense of illegitimacy given the president’s pursuit to secure the dominant role of the Muslim Brotherhood.

Let's compare this development of the past two years with the eminently sound proposal by Mohammed El Baradei of 23 February 2011. One can clearly discern signs of politics which extended the influence of Muslim Brotherhood beyond limits of legitimacy. A split between legality and legitimacy erupted between a legally elected president and a growing sense of illegitimacy of his rule.

All this resulted in the breakdown of Morsi's presidency, the widespread protests and the military intervention of 3 July. The ensuing crisis produced widespread violence and a real danger of a civil war. Establishing calm is the first priority while the real solutions will take time, much more time then would be necessary if a more gradualist approach was taken from start.

The second trio: Bosnia and Herzegovina, Lebanon and Syria

The specific feature of these three countries is the level of ethnic and religion diversity which requires special governance arrangements to ensure legitimacy of the state. In addition they have been and continue to be on the agenda of the UN.

Bosnia and Herzegovina

In Europe, Bosnia and Herzegovina is a special case. As a multiethnic state with the three main ethnic and religious communities (Bosnian Muslims, Catholic Croats and Christian orthodox Serbs) and a small but historically and culturally important Jewish community it has always required a special kind of governance arrangements. At the time of the Socialist Federal Yugoslavia, the political structures of Bosnia and Herzegovina (and also of its Communist party) were constructed with a great sensitivity to maintaining the ethnic balance. Muslims, Serbs and Croats had to be represented the important bodies of the Republic. However, this power sharing arrangement was not fully visible: It was well covered by the ideology of “brotherhood and unity” and the vanguard role of the Communist Party.

When Federal Yugoslavia disintegrated Bosnia was at a loss. None of their leaders initially wanted the federal state to simply collapse. However, that was precisely what was happening. In the circumstances the leaders of Bosniak Muslim community, relatively the largest group but not holding a numerical majority in the country, expressed readiness for an arrangement with Croatia and Serbia for a new federation. None of the two were interested. Their respective presidents, Franjo Tuðman and Slobodan Milo¹eviæ even entertained the idea of partition of Bosnia. It was this existential crisis which pushed Bosnia and Herzegovina on the uncertain path of independence.

When Bosnia and Herzegovina applied for international recognition, in the late 1991, within the procedures of the then Peace Conference on Yugoslavia, it could not claim that this request represented clear expression of the will of the people. The Arbitration Commission of the Peace Conference noted that the will of the people of Bosnia and Herzegovina to constitute the country as a sovereign and independent state »cannot be held to have been fully established«. The Commission went on to say:

»This assessment could be reviewed if appropriate guarantees were provided by the Republic applying for recognition, possibly by means of a referendum of all citizens of the Socialist Republic of Bosnia and Herzegovina without distinction, carried out under an international supervision.« (Arbitration Commission of the Conference on Yugoslavia, Opinion No. 4 of 11 January 1992)

This brief statement encapsulates the whole problem: The application for the international recognition of Bosnia and Herzegovina lacked full support of the people and hence the necessary legitimacy. This should be remedied but the Arbitration Commission did not know how. An internationally supervised referendum was cautiously proposed as a possibility. The referendum was held on 1 March 1992 but did not produce – and could not produce a real solution. Bosnian Serbs have largely boycotted the referendum and – with strong political and military support of Milo¹eviæ Serbia - rose up in arms. Two months later Bosnia was in flames.

The ensuing war changed everything. The war in Bosnia and Herzegovina was a war for territory. Large areas of the country were »ethnically cleansed«. Two years into the war the Bosniak Muslims and Croats reached an agreement about »cantonization« of the territories under their control. This concept was expressed in the Washington agreement of February 1994. The idea was to »cantonize« the entire country and to offer the Bosnian Serbs, who were, at the time still dominant militarily, to join a loose federation of cantons. The choice of the concept of »cantons« had an appeal for Muslims and Croats, not the least because its »western sounding« terminology, but was rejected by Bosnian Serbs and their external supporters. The Serb entity, Republic Serbia, was accepted at the Dayton peace negotiations (in autumn of 1995) as an equal partner to the Federation of Bosnia and Herzegovina which consisted of 10 cantons with the majority population of Muslims and Croats.

While Dayton Agreement ended the war it did not provide an organizational framework for a functioning state. Bosnia and Herzegovina became a state of two entities, one of which was further divided into cantons and both of which have serious difficulties in establishing a coherent internal structures.

The problem of the inadequate, at best provisional constitution of the country was further exacerbated by post war politics. In an attempt to secure legitimacy of the Dayton structures, the international community rushed the parliamentary elections less than a year after the ending of the war. This only strengthened the nationalist parties, which were already hardened by three and half years of war. There was not enough time for political alternatives to emerge and to organize themselves.

In addition, in a country like Bosnia and Herzegovina legitimacy of state power cannot be formed on the basis of a simple democratic principle – one person one vote. A workable combination of democratic principles and political requirements of ethnic balance was needed. So far this has not been possible in Bosnia and Herzegovina. The current system is not workable. It is too unwieldy, complex and expensive to lend itself to effective management. For example, in the capital Sarajevo, there are five layers of authority: The State, The Entity (the Federation), the canton, the city and municipalities.

The efforts to revise the system exist, including those initiated by the EU and the US. According to a recent report by a working group initiated earlier this year (2013) by the US Embassy in Sarajevo, there have been so far 109 amendments proposed to change the constitution of the entity Federation of Bosnia and Herzegovina alone.

At present there are no particular reasons for optimism. But there is some hope. Croatia has become a member of the EU. Serbia is moving in that direction and has started to improve its relations with Kosovo. When this processes get sufficient momentum it will become possible to move Bosnia and Herzegovina closer to the EU as well. In such a future situation it will become necessary to prepare a completely new constitutional arrangement for the country. The discussions held so far and all the hitherto unsuccessful attempts were useful in so far as they clarified what doesn't work and identified ideas what just might. However, the time to provide a comprehensive framework for a fully legitimate functioning of the state of Bosnia and Herzegovina has not yet come.

Lebanon

It is important to compare the tragic fate of Bosnia and Herzegovina with the experience of other multiethnic countries, in particular those where ethnic complexity is combined with a deeper, religious divide between Islam and Christianity and where the regional and international actors play an essential role in the design of governance.

The most typical situation where all the se factors contribute to the political complexity is the one of Lebanon. The country has 18 officially recognized religious sects and a long history of power sharing arrangements- the composition of its religious and ethnic structure has changed over time. At the beginning, following the dissolution of the Ottoman empire, it was a predominantly Christian state. Today, the situation is reversed – the population is about 60 per cent Muslim and 40 percent Christian. The influx of Palestinian refugees and strengthening of the Shia community in the past decades have added to the complexity.

The country descended into a long civil war in 1975, which ended only fifteen years later, in 1989, and left the country under decisive influence of Syria. It took an entire generation, until 2005, that the Syrian domination and military presence started to diminish. Furthermore, the Israeli interventions across its northern borders, the latest of which took place in 2006, have had a strong effect on Lebanon and have at the end led to the strengthening Hezbollah which has become a major political and military player in the country and in the region.

The normative and political framework for governance in Lebanon was negotiated in parallel with the civil war. The Taif Agreement of 1989 which ended the war provides for an elaborate system of balances among various religious and ethnic groups and sects in the country. The Taif Agreement is an expression of the historic experience of the Lebanese state. Its formulae take advantage of the power sharing tradition and are concentrated on the state of Lebanon as a whole. This is important because the danger of territorial fragmentation and the problems that this brings was greatly diminished.

The problems of legitimacy of state power and politics more generally have to do with two other issues: The influence of Syria and the profile of democracy in a country which is divided politically, ethnically and along religious lines.

These problems have been dominating the political scene in Lebanon, in particular since 2005, after the assassination of Prime Minister Rafik Harriri. The subsequent period, until 2008 has been marked by controversy and violence. The »Cedar Revolution« was a genuine expression of desire for democracy, combined with the demand for withdrawal of the Syrian troops. In Lebanon, however, it could not succeed to the full. While the Syrian military gradually withdrew, its political influence continued, if only in a modified form. The Doha agreement of May 2008 which ended the period of turmoil followed the lines of the earlier power sharing arrangements. The agreement included the choice of the president, the formation of a national unity government and on the cessation of violence.

In the subsequent years the situation of Lebanon continued to be tense, while the power sharing arrangements of Taif and Doha seem to have been holding. The war in Syria brought new dangers. The divide between Sunni and Shia groups has deepened and each of them, predictably, decided to support their kin in Syria in a peculiar version of a “proxy war”. In June this year Hezbollah took a active part in hostilities in Syria and helped the Government to regain the upper hand. This is a dangerous development which makes Lebanon part of the larger situation emerging in Syria and in the region as a whole. Nonetheless one can still agree with a view of the International Crisis Group that none of the Lebanon's principal political camps want to test a disaster scenario.

However, the war in Syria has not yet produced its most destabilizing effects on Lebanon even though the resilience of Lebanon is already being tested as never before. Only time will tell whether the agreements, which provide the framework for legitimacy of Lebanon’s state structure, will survive.

Syria

Much will depend on the outcome of the war in Syria. The armed conflict in Syria has started two years ago as an armed uprising against an oppressive regime but has gradually gained strong religious, ethnic and international dimensions. The conduct of the armed conflict, its grave humanitarian consequences an, in particular, the use of chemical weapons on 21 August 2013 have put the conflict at the center of international concerns. The US Russian framework agreement of 14 September on Syrian Chemical Weapons brought a glimmer of hope that the newfound diplomatic pace will open the path to peace.

There are very good reason for a strong diplomatic initiative to resolve the Syria crisis. The situation is already inflamed by multiple actors and their agendas: There is too much intervention by regional players. In addition to the deepening of the horrors of humanitarian drama, two dangers are particularly severe:

First, the gradual transformation of the armed conflict Syria into a region-wide conflict with strong religious character. The potential of wider Sunni-Shia confrontation, which is emerging on the Syrian battleground can have a wide destabilizing effect and a variety of global repercussions, including new waves of terrorism affecting every corner of the world.

Second, territorial fragmentation of Syria with the Kurdish region in the north, Sunni in the East and Shia-Allawi- Christian in the coastal West. Such a development would create complications exceeding those experienced in Bosnia and Herzegovina.

This is a situation when the great powers, the regional players and the UN have to get together, use the forum of the United Nations and devise a meaningful peace process leading to an effective peace conference. Some indications of the way forward are already discernable. Let me mention two among them.

First, the transitional governing body: President Assad's term of office expires in 2014 which should provide a possibility for his exit, while giving enough time to work out an agreement on a transitional governing body with full executive powers and its composition. This would require further strengthening of US - Russian cooperation. In addition, each of them should make an effort to ensure the participation of the regional players: Turkey, the Arab states and Iran. A decisive push for the peace conference is needed. Punishment of perpetrators of the August 21^st chemical attack can take place later, ideally through proceedings of the International Criminal Court in the Hague.

Second, don't allow territorial fragmentation of the country. A Lebanon – style power sharing arrangement is far preferable to Bosnian style »cantonization«. The latter example showed that new territorial arrangements may be very difficult to organize in a workable constitutional form and that domestic complication and foreign influences do not cease with a new territorial arrangements. To the contrary, there is danger that they are given a permanent territorial base.

A power sharing formula among various Syrian actors would be preferable and could limit future foreign interference.

At present, there are no signals yet which would allow optimistic assumption. Working on multiple fronts is always difficult, even more so when minds are focused on weapons of mass destruction, such as chemical weapons. The US, Russia, the regional players and the UN should come with new ideas - both on the organization of the future political process and the desired political outcomes.

CONCLUSION

Each of the mentioned situations has had its own way towards a solid base of legitimate rule. Awareness of the very real diversity of sources of legitimacy and of the fact that they often compete and conflict must always be present. And very often, building of solutions takes an enormous amount of time. The art of politics and diplomacy is precisely in the ability to make this time shorter and the constitutional arrangements durable.

What are the lessons relevant for the UN?

First, the Security Council should be careful to pay adequate attention to the issues of legitimacy and other, seemingly soft political issues. Crisis management should not be dominated by the military considerations alone. In fact, the military success often depends on the capacity to get the legitimacy issues right. In the situations where a special representative of the Secretary General is appointed he or she should be the person to formulate proposals and guide the tactic of transition. The work of late Sergio Vieira de Mello in East Timor provides a valuable example of how this can be done.

Second, the Secretary General should follow all the situations of transition closely, irrespective of whether they are on the agenda of the collective bodies of the UN or not.
The Secretary-General needs a capable and proactive Department of political affairs. He can make a good use of his lieutenants, his »telephone diplomacy« without formally proposing his good offices or invoking his powers under Article 99 of the UN Charter. His informal advice should be available when needed – and early. Getting the issue of legitimacy of transition right at an early stage is a matter of paramount importance.

Photo: Paul H. Nitze School of Advanced International Studies (SAIS), Washington

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"Untying Gordian Knots: Transitions, Crisis Management and Legitimacy of State Power", Lecture by Dr Danilo Türk, Former President of the Republic of Slovenia at the Paul H. Nitze School of Advanced International Studies (SAIS)