00;00;16;03 - 00;00;37;23

Jonathan Hafetz

Hi, I'm Jonathan Heifetz. Welcome to Law and Film, a podcast that looks at law through film and film through law, exploring the rich connections between both. This episode, we'll look at Black Hawk Down, a 2001 film about the US crew of a Black Hawk helicopter shot down during the Battle of Mogadishu during the civil war in Somalia in October 1993.

00;00;38;00 - 00;01;13;13

Jonathan Hafetz

The battle resulted in the death of 18 American soldiers and hundreds of Somalis. It also prompted the US withdrawal from Somalia, after images of dead U.S. soldiers being dragged through the streets of Mogadishu by enraged Somalis for broadcast on American television. Directed by Ridley Scott from a book by Mark Bowden, black Hawk Down is a gritty action movie that captures the brutal nature of urban warfare, but it also provides a window into a host of complex international legal and political issues, and to the opportunities and challenges for humanitarian intervention in the aftermath of the Cold War.

00;01;13;15 - 00;01;23;25

Jonathan Hafetz

Joining me is Greg Fox, professor and director of the program for International Legal Studies at Wayne State University Law School in Detroit. Welcome, Greg. Great to have you.

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Greg Fox

Thank you. John. Pleasure to be here.

00;01;25;21 - 00;01;39;10

Jonathan Hafetz

So can you just set up the movie for us? It's an action movie. We get a little context at the beginning of the movie, but tell us a little bit more about Somalia, the colonial background, the civil war and the famine that resulted.

00;01;39;12 - 00;02;05;15

Greg Fox

Absolutely. This is an interesting movie to be talking about because for younger listeners, this is history for somewhat older listeners like me. And I suspect you, this is something that we remember from our own lives. Somalia, as many people may know, is in the Horn of Africa and its history in the 19th century really epitomizes what some historians refer to as the scramble for Africa.

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Greg Fox

This effort by European colonial powers to acquire territory, over a period of about 50 or 60 years, the British, the Italians and the French all became established in different parts of Somalia after World War Two, when the Italians were defeated. What was referred to as Italian Somaliland became merged with British Somaliland and the French continued their control in an area which eventually became the country of Djibouti and the country that we know today.

00;02;39;11 - 00;03;06;02

Greg Fox

As Somalia became independent in 1960. The background of the conflict depicted in the film is what they refer to in the film as clan warfare, and those clans, there's probably a more precise indigenous term for the groupings that I don't know, but the identity sought by people towards those clans were reinforced by this executive partition of Somalia during the colonial period.

00;03;06;07 - 00;03;37;01

Greg Fox

But after it becomes independent, there's stability for a period of time. In 1969, a general named could bar stages a coup, takes power more or less is an absolute dictator and rules with an iron hand. He is supported initially by the Soviet Union, but then next door when Emperor Haile Selassie in Ethiopia is overthrown by a Marxist leaning government, the Soviets switch and they support the Ethiopia arms against the Somalis.

00;03;37;01 - 00;04;03;18

Greg Fox

Because one of the unresolved territorial issues from the colonial period was over an area called the Oka Down, which both countries claimed, and the United States started supporting Psi Bar. And this happened, you know, from the late 1970s into the late 80s. A somewhat glaring exception to stated U.S. policy of infusing human rights into our foreign policy. There is increasing dissatisfaction with psi bar.

00;04;03;20 - 00;04;27;29

Greg Fox

The dissatisfaction is brought on by food shortages, by a series of environmental disasters that lead to what is effectively a famine in the country. And Psi Bar A is overthrown in January 1991 and flees the country. And without kind of going into more detail, I think it's fair to say that the country's descends into something close to anarchy at that point.

00;04;28;03 - 00;04;48;14

Greg Fox

The various clan groupings fight with each other, controlling different parts of the country, but there is no central government. And just to preview something that will probably talk about at the end of the podcast that persists until 2012. There is no central, effective government in Somalia for this nearly 20 year period.

00;04;48;17 - 00;05;02;20

Jonathan Hafetz

One of the effects of this civil war that breaks out is the famine. Right? And that's where I think ultimately about 300,000 people die. And that's one of the things that prompts the intervention of the UN.

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Greg Fox

Yeah, absolutely. And so the famine becomes acute for, as I said, natural and logistical reasons right around the time the outbreak falls. But what also starts happening, and this is a phrase that was used quite often at the time the various clans start using food as a weapon. They divert food to their own people, they deny it to others.

00;05;24;20 - 00;06;04;28

Greg Fox

And so a series of U.N. aid agencies went in almost immediately after the government fell and worked to distribute food. But they had no means to protect their convoys, to protect their personnel. And they were susceptible to all of the tactics that the clan leaders were using. And so it was this famine, which was a manmade phenomenon to much of the outside world, that prompted suggestions for some sort of more forceful intervention, potentially hundreds of thousands, maybe millions of people are going to starve, not because they lack food, but because food that is available is not being given to them.

00;06;05;00 - 00;06;09;27

Greg Fox

And there's a sense that the international community just simply can't sit back and watch that happen.

00;06;09;29 - 00;06;26;10

Jonathan Hafetz

And so how does this intervention is humanitarian intervention take place in terms of the international legal framework, the UN, the backdrop of the UN charter system? And what's sort of the context for this international humanitarian intervention at the time?

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Greg Fox

I have to say that you could read the really outstanding book by Mark Bowen, which you mentioned is the basis for this movie. And watch the movie and really get virtually no sense that international law is quite important factor in how this whole scenario plays out. And you can't fault Mark Darwin or Ridley Scott for that. They have this incredibly gripping action tale to tell, and I think they try and get it issues that the legal questions kind of stand for, as opposed to talking about the legal questions themselves.

00;06;57;10 - 00;07;18;27

Greg Fox

But this is, I suppose, a much more of a more adjacent movie than a movie that, you know, could have deals with war and such. So let me try and do this really quickly, because there are entire courses taught on this subject matter. So the question that outside intervention in a country poses is whether that kind of use of force is lawful.

00;07;19;02 - 00;07;40;03

Greg Fox

And prior to 1945, when the UN charter decide, the answer to that question would have been absolutely yes. International law did not impose any restrictions on the use of force. World War Two, you know, taught us an object lesson and how the permissive rule that can go very, very wrong. And so the UN charter is seen as a reaction to World War two.

00;07;40;03 - 00;08;20;24

Greg Fox

And in a critical part of the charter language article two paragraph for the countries drafting the agreement say that the aggressive use of force is now unlawful, and there are only two exceptions to that ban in the charter itself. One is force used in self-defense, which is not an issue here, right? No country has been attacked. And the other is authorization by the UN Security Council, which is set up as the executive body to speak for the international community on use of force, the way the charter envisions the international community responding to aggressive uses of force.

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Greg Fox

You know, what do we do if another Hitler comes along is that it was going to create essentially a UN army, and another provision of the charter provided that member states would enter into agreements with the Security Council, by which they would reauthorize the use of their troops under a unified UN command structure. And if there was an armed conflict, the Security Council could kind of activate those agreements, and this UN force would would go off and do the job.

00;08;47;29 - 00;09;09;15

Greg Fox

And the underlying idea of this is often referred to as collective security, that the mistake of World War Two was to think that wars were only the business of the countries in conflict. And the UN charter says no, they're a concern for everybody. Because if you leave wars alone to fester, pretty soon they're going to spread and aggressors will be emboldened.

00;09;09;15 - 00;09;35;25

Greg Fox

And pretty soon we're all in it together anyway. And so why not respond initially? So that's the charter scheme. It never worked. No country ever entered into these agreements with the Security Council. That's largely due to the Cold War, which kind of comes about almost immediately after the charter is negotiated in 1945. And, you know, not only are there no agreements, but the Security Council essentially becomes paralyzed.

00;09;35;26 - 00;10;00;06

Greg Fox

The Soviet Union vetoes Western resolutions, the West vetoes the Soviet resolutions. For this 40 year period, up until 1989, the collective security apparatus is frozen. But the period immediately before the events in Mogadishu, which are the subject of this movie is this period of extraordinary transition. It's hard to put an exact date on when the Cold War ends.

00;10;00;06 - 00;10;22;25

Greg Fox

You know, you can say it's the fall of the Berlin Wall in 1989. The Soviet Union itself doesn't actually come to an end until the end of 1991. But starting in 1989, there's all of a sudden cooperation. We are all looking around and saying, well, there's no more cold worry anymore. There are these hot wars in smaller countries, which used to be proxy wars between the two sides.

00;10;22;26 - 00;10;48;02

Greg Fox

But, you know, we're not fighting those much anymore. Can't we do something about the war? These wars themselves. So there's this kind of unfreezing of the Security Council and then two other things that really, I think, kind of set the Somalia events in motion. The first is the sense that and I have to be careful how to phrase this, because there's lots of ways that it's described negatively.

00;10;48;03 - 00;11;08;16

Greg Fox

You know, the most negative is what we're now at the end of history. Everybody agrees liberal democracy is the type of government that every country in the world will eventually adopt. And so we, the international community, can just do everybody a favor by going about and promoting democracy. That's associated with a famous article by Francis Fukuyama. I don't think a lot of people now look back fondly at that prediction.

00;11;08;16 - 00;11;34;07

Greg Fox

But there was a sense that after 40 years of ideological opposition to liberal democracy, there was an opportunity for it to spread. And the new U.N. secretary General, Boutros Boutros-Ghali, issued this landmark document calling the agenda for peace in 1992, talking about how the UN might help not only end local conflicts, but start to help reconstruct these countries along liberal Democratic lines.

00;11;34;09 - 00;12;00;20

Greg Fox

So that's the first thing. The second thing was the first Gulf War. This is the Saddam Hussein president of Iraq, invades Kuwait in 1990 and with which he had long claimed occupies it. And in extraordinary contrast to the situation during the Cold War, the Security Council reacts immediately. The council passes the solution hours after the Iraqi invasion, condemning it, saying it's unacceptable.

00;12;00;26 - 00;12;28;18

Greg Fox

You know, the US, the Soviet Union, China all vote for this resolution and Saddam doesn't leave. And there's a series of other resolutions until the end of January 1991, when a US led coalition goes into Kuwait, evicts Iraqi forces, pushes them a short distance into Iraq, and stops after 100 hours. And this is an extraordinary kind of adrenaline boost to the UN system.

00;12;28;19 - 00;12;51;25

Greg Fox

Look what we accomplished. You know, the charter, as I said, was envisioned as a response to World War two. You know, we have to stop dictators from invading and annexing their neighbors. We couldn't do that for 40 years. And now we just did it in relative terms. It went really quickly and really well. And so this also gave this kind of adrenaline boost to the collective security system.

00;12;51;27 - 00;13;16;03

Greg Fox

So when things start going bad in Somalia, you know, as you mentioned, by the end of 1992, it seemed that 300,000 people had died. The Security Council responds first in January of 1992, by imposing arms embargo on Somalia to try and decrease the amount of weaponry and passes a series of other resolutions. And we can talk about what those say.

00;13;16;03 - 00;13;50;12

Greg Fox

But the idea was that there would be security provided to the aid distribution agencies that would stop the clans from using food as a weapon. That didn't really work. The clans really didn't back down. The clans were participating in a peace process which was taking place next door in Ethiopia that the UN was sponsoring. But there was a consensus among Security Council members that that wouldn't get going until the clans believed that they couldn't get what they wanted through force.

00;13;50;17 - 00;14;14;26

Greg Fox

And there was also a sense on the part of the aid agencies that they really couldn't effectively distribute food unless there was a more secure environment. And so what happened over a period of about a year was that the Security Council gradually expanded the mandate of the UN forces, and there were two UN operations. The acronym was unison.

00;14;14;26 - 00;14;50;18

Greg Fox

There was unison one, there was unison two. At a certain point, the Secretary-General Boutros Boutros-Ghali, at the end of 1992, reports to the Security Council and says, look, the status quo is unsustainable. Here's a series of options for you to consider. And the options were a spectrum of kind of doing nothing, which clearly he didn't think was acceptable to authorizing a incredibly robust UN force that would have the authority to use force throughout the entire country and, you know, essentially wrest control from the warlords.

00;14;50;23 - 00;15;15;23

Greg Fox

Boutros-Ghali was a savvy negotiator. You know, you present a spectrum. Either end of the spectrum is unacceptable. So, of course, you know that the council is going to choose something in the middle. And they did. They chose his fourth option, which created a parallel authorization that in the Security Council talked about a group of member states being authorized to use all necessary means to restore order in Somalia.

00;15;15;28 - 00;15;45;28

Greg Fox

This was understood to refer to the United States, because then President George H.W. Bush had offered that the US would send a marines to Somalia to do some of the hard fighting that would be difficult for UN forces. You know, in December 1992, the Security Council agrees with the Secretary-General, and the United States takes the US up on its offer and passes resolution 794, critically invoking chapter seven of the UN charter.

00;15;46;01 - 00;16;10;10

Greg Fox

In chapter seven of the charter is the portion that allows the Security Council to create binding legal obligations. And so when the Security Council says to all the factions in Somalia, you can't interfere with food aid, you can't attack relief workers, you can't do, you know, all these other things that contribute to instability that's considered a binding legal obligation.

00;16;10;13 - 00;16;37;29

Greg Fox

Interesting question that may arise in some people's minds. International law is all about relations between countries. The United Nations itself is an organization made up of countries of states. How is it that that kind of organization can issue legal mandates to non-state actors like warlords? They're not members of the UN. They generally don't have much in the way of international legal personality.

00;16;38;06 - 00;16;59;23

Greg Fox

Where does the Security Council get the authority to do this? That's a kind of legal innovation. Clearly not envisioned by the drafters of the charter, but it's something the council has been using ever since. Why? Because most of the conflicts around the world since the end of the Cold War have been civil wars. And necessarily in any civil war, one party is going to be a non-state rebel group.

00;16;59;29 - 00;17;29;12

Greg Fox

And so that's a power that the Security Council has used all the time. Back to these resolutions. As I said, they escalate in their severity and we kind of move ourselves up to June 30th in 1993, when a group of Pakistani peacekeepers operating through the UN force unit, some two are attacked by the forces of one of the clan leaders, a guy named Mohamed Farah Aideed.

00;17;29;15 - 00;17;58;23

Greg Fox

In 24 Pakistani peacekeepers are killed. That is deemed unacceptable. The next day, the Security Council passes another resolution saying that and saying critically that the individuals who are responsible for that attack will be held individually responsible. Another innovation responsible by Who? There's no permanent international criminal court. There's no functional Somali courts. Are they going to be extradited back to the United States?

00;17;58;26 - 00;18;22;12

Greg Fox

There's an American courthouse jurisdiction over a Somali citizen killing a Pakistani citizen in Somalia. That seems to be open to question, but the Security Council is obviously not happy. So the Security Council says, go get these guys. And, you know, this is something I remember from the time this was an outrage. You know, the UN is there to help the Somali people to do good.

00;18;22;15 - 00;18;56;24

Greg Fox

And Pakistan contributed these peacekeepers because they believed in that mission and they're murdered for it. We can't allow people like Aidid to get away with this. And so there was a sense that the honor and integrity and kind of mission security of the UN was at stake, and we had to respond. And that brings us to October 2nd of 1993, when Task Force Ranger, which was the quick reaction force that the US had established, goes out to try and capture the number of General Aideed's aides in Mogadishu.

00;18;56;27 - 00;19;16;14

Jonathan Hafetz

That's such a helpful context to understanding the movie. You know, as you say, it's an action movie, but all this is just in the background. But it's kind of there. I mean, the movie does depict the UN operation. Clearly the UN is the sort of overarching operation, but clearly you have the US military force, and the US Rangers and the Delta Force operators were leading the primary military intervention.

00;19;16;19 - 00;19;36;15

Jonathan Hafetz

And there's a great scene early in the movie between Sam Shepard character, the American general who oversees the operation, and one of the Somali prisoners. It's a businessman who is high level and appears to have been supplying arms to added. And there's this great dialog between them, and it captures what you're saying.

00;19;36;17 - 00;20;09;25

Movie Dialogue

General garrison, Colonel, thanks again. These are Cuban Bolivar bellicose forces. Miami, my friend, is not Cuba. See? Not catching Aidid is becoming routine. We were trying to catch a day. We were trying to catch you and me. But I made that important. I had to think so. We're just two businessmen trying to make a little show against these militias.

00;20;09;27 - 00;20;43;19

Movie Dialogue

You've been here, what, six weeks? Six weeks? You're trying to catch the general. You put up posters. $25,000. What is this? Gunfight at the okay corral. It's okay. Do you think bringing me in would make him suddenly come to you? Make him more agreeable in the way he sleeps? I think it was bad. My place is militia. We're not leaving Somalia until we find.

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Movie Dialogue

A legal fight. Don't make the mistake of thinking. Because I grew up without running water. I'm running. No.

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Movie Dialogue

No no no.

00;21;04;01 - 00;21;25;21

Jonathan Hafetz

Hi, I'm Jonathan Heifetz. Welcome to Law and Film, a podcast that looks at law through film and film through law, exploring the rich connections between both. This episode will look at Black Hawk Down, a 2001 film about the US crew of a Black Hawk helicopter shot down during the Battle of Mogadishu during the civil war in Somalia in October 1993.

00;21;25;28 - 00;22;01;11

Jonathan Hafetz

The battle resulted in the death of 18 American soldiers and hundreds of Somalis. It also prompted the US withdrawal from Somalia after images of dead U.S. soldiers being dragged through the streets of Mogadishu by enraged Somalis were broadcast on American television. Directed by Ridley Scott from a book by Mark Bowden, Black Hawk Down is a gritty action movie that captures the brutal nature of urban warfare, but it also provides a window into a host of complex international legal and political issues, and to the opportunity and challenges for humanitarian intervention in the aftermath of the Cold War.

00;22;01;13 - 00;22;11;24

Jonathan Hafetz

Joining me is Greg Fox, professor and director of the program for International Legal Studies at Wayne State University Law School in Detroit. Welcome, Greg. Great to have you.

00;22;11;26 - 00;22;13;17

Greg Fox

Thank you. John. Pleasure to be here.

00;22;13;19 - 00;22;27;08

Jonathan Hafetz

So can you just set up the movie for us? It's an action movie. We get a little context, the beginning of the movie, but tell us a little bit more about Somalia, the colonial background, the civil war and the famine that resulted.

00;22;27;10 - 00;22;53;11

Greg Fox

Absolutely. This is an interesting movie to be talking about because for younger listeners, this is history for somewhat older listeners like me. And I suspect you, this is something that we remember from our own lives. Somalia, as many people may know, is in the Horn of Africa and its history in the 19th century really epitomizes what some historians refer to as the scramble for Africa.

00;22;53;12 - 00;23;27;10

Greg Fox

This effort by European colonial powers to acquire territory, over a period of about 50 or 60 years, the British, the Italians and the French all became established in different parts of Somalia after World War Two, when the Italians were defeated. What was referred to as Italian Somaliland became merged with British Somaliland, and the French continued their control in an area which eventually became the country of Djibouti and the country that we know today.

00;23;27;10 - 00;23;53;29

Greg Fox

As Somalia became independent in 1960. The background of the conflict depicted in the film is what they refer to in the film as clan warfare, and those clans, there's probably a more precise indigenous term for the groupings that I don't know, but the identity sought by people towards those clans were reinforced by this effective partition of Somalia during the colonial period.

00;23;54;04 - 00;24;35;06

Greg Fox

But after it becomes independent, there's stability for a period of time. In 1969, a general named Koba stages a coup, takes power, and more or less is an absolute dictator and rules with an iron hand. He is supported initially by the Soviet Union, but then next door when Emperor Haile Selassie in Ethiopia is overthrown by a Marxist leaning government, the Soviets switch and they support the Ethiopians against the Somalis because one of the unresolved territorial issues from the colonial period was over an area called the Oka Down, which both countries claimed, and the United States started supporting.

00;24;35;06 - 00;25;07;18

Greg Fox

Sidebar. And this happened, you know, from the late 1970s into the late 80s, a somewhat glaring exception to stated U.S. policy of infusing human rights into our foreign policy. There is increasing dissatisfaction with Koba. The dissatisfaction is brought on by food shortages by a series of environmental disasters that lead to what is effectively a famine in the country, and Kibera is overthrown in January 1991 and flees the country.

00;25;07;21 - 00;25;30;09

Greg Fox

And without kind of going into more detail. I think it's fair to say that the country's descends into something close to anarchy at that point. The various clan groupings fight with each other, controlling different parts of the country, but there is no central government. And just to preview something that will probably talk about at the end of the podcast that persists until 2012.

00;25;30;12 - 00;25;36;12

Greg Fox

There is no central, effective government in Somalia for this nearly 20 year period.

00;25;36;15 - 00;25;50;16

Jonathan Hafetz

One of the effects of this civil war that breaks out is the famine. Right? And that's, you know, where I think ultimately about 300,000 people die. And that's one of the things that prompts the intervention of the UN.

00;25;50;18 - 00;26;12;17

Greg Fox

Yeah, absolutely. And so the famine becomes acute for, as I said, natural and logistical reasons. Right around the time Siad Barre falls. But what also starts happening, and this is a phrase that was used quite often at the time the various clans start using food as a weapon. They divert food to their own people, they deny it to others.

00;26;12;17 - 00;26;42;13

Greg Fox

And so a series of UN aid agencies went in almost immediately after the government fell. And were it did distribute food, but they had no means to protect their convoys, to protect their personnel. And they were susceptible to all of the tactics that the clan leaders were using. And so it was this famine, which was a manmade phenomenon to much of the outside world, that prompted suggestions for some sort of more forceful intervention.

00;26;42;18 - 00;26;57;23

Greg Fox

Potentially hundreds of thousands, maybe millions of people are going to starve, not because they lack food, but because food that is available is not being given to them. And there's a sense that the international community just simply can't sit back and watch that happen.

00;26;57;25 - 00;27;14;08

Jonathan Hafetz

And so how does this intervention does humanitarian intervention take place in terms of the international legal framework, the UN, the backdrop of the UN charter system, and what's sort of the context for this international humanitarian intervention at the time?

00;27;14;11 - 00;27;45;08

Greg Fox

I have to say that you could read the really outstanding book by Mark Bauer, in which you mentioned is the basis for this movie and watch the movie. And really get virtually no sense that international law is quite important factor in how this whole scenario plays out. And you can't fault Mark Darwin or Ridley Scott for that. They have this incredibly gripping action tale to tell, and I think they try and get it issues that the legal questions kind of stand for, as opposed to talking about the legal questions themselves.

00;27;45;08 - 00;28;06;25

Greg Fox

But this is, I suppose, a much more of a war adjacent movie than a movie that, you know, could have deals with war and such. So let me try and do this really quickly, because there are entire courses taught on this subject matter. So the question that outside intervention in a country poses is whether that kind of use of force is lawful.

00;28;07;00 - 00;28;28;02

Greg Fox

And prior to 1945, when the UN charter decide, the answer to that question would have been absolutely yes. International law did not impose any restrictions on the use of force. World War Two, you know, taught us an object lesson and how the permissive will flip. That can go very, very wrong. And so the UN charter is seen as a reaction to World War two.

00;28;28;02 - 00;29;08;23

Greg Fox

And in a critical part of the charter language article two paragraph for the countries drafting the agreement say that the aggressive use of force is now unlawful, and there are only two exceptions to that. And in the charter itself, one is force use and self-defense, which is not an issue here. Right. No country has been attacked. And the other is authorization by the UN Security Council, which is set up as the executive body to speak for the international community on use of force, the way the charter envisions the international community responding to aggressive uses of force.

00;29;08;23 - 00;29;35;28

Greg Fox

You know, what do we do if another Hitler comes along is that it was going to create essentially a UN army, and another provision of the charter provided that member states would interim to agree with the Security Council, by which they would reauthorize the use of their troops under a unified UN command structure. And if there was an armed conflict, the Security Council could kind of activate those agreements, and this U.N. force would would go off and do the job.

00;29;35;28 - 00;29;57;10

Greg Fox

And the underlying idea of this is often referred to as collective security, that the mistake of World War Two was to think that wars were only the business of the countries in conflict. And the UN charter says no, there are concern for everybody, because if you leave wars alone to fester, pretty soon they're going to spread and aggressors will be emboldened.

00;29;57;10 - 00;30;23;22

Greg Fox

And pretty soon we're all in it together anyway. And so why not respond initially? So that's the charter scheme. It never worked. No country ever entered into these agreements with the Security Council. That's largely due to the Cold War, which kind of comes about almost immediately after the charter is negotiated in 1945. And, you know, not only are there no agreements, but the Security Council essentially becomes paralyzed.

00;30;23;22 - 00;30;48;02

Greg Fox

The Soviet Union vetoes Western resolutions, the West vetoes the Soviet resolutions. For this 40 year period, up until 1989, the collective security apparatus is frozen. But the period immediately before the events in Mogadishu, which are the subject of this movie is this period of extraordinary transition. It's hard to put an exact date on when the Cold War ends.

00;30;48;02 - 00;31;10;22

Greg Fox

You know, you can say it's the fall of the Berlin Wall in 1989. The Soviet Union itself doesn't actually come to an end until the end of 1991. But starting in 1989, there's all of a sudden cooperation. We are all looking around and saying, well, there's no more cold worry anymore. There are these hot wars in smaller countries, which used to be proxy wars between the two sides.

00;31;10;25 - 00;31;36;00

Greg Fox

But, you know, we're not fighting those much anymore. Can't we do something about the war, these wars themselves? So there's this kind of unfreezing of the Security Council and then two other things that really, I think, kind of set the Somalia events in motion. The first is the sense that and I have to be careful how to phrase this, because there's lots of ways that it's described negatively.

00;31;36;00 - 00;32;04;24

Greg Fox

You know, the most negative is what we're now at the end of history. Everybody agrees liberal democracy is the type of government that every country in the world will eventually adopt. And so we, the international community, can just do everybody a favor by going about and promoting democracy. That's associated with a famous article by Francis Fukuyama. I don't think a lot of people now look back fondly at that prediction, but there was a sense that after 40 years of ideological opposition to liberal democracy, there was an opportunity for it to spread.

00;32;05;00 - 00;32;34;14

Greg Fox

And the new U.N. Secretary-General, Boutros Boutros-Ghali, issued this landmark document calling the agenda for peace in 1992, talking about how the U.N. might help not only end local conflicts, but start to help reconstruct these countries along liberal Democratic lines. So that's the first thing. The second thing was the first Gulf War. This is the Saddam Hussein president of Iraq, invades Kuwait in 1990 and with which he had long claimed occupies it.

00;32;34;17 - 00;33;16;16

Greg Fox

And in extraordinary contrast to the situation during the Cold War, the Security Council reacts immediately. The council passes the solution hours after the Iraqi invasion, condemning it, saying it's unacceptable. You know, the US, the Soviet Union, China all vote for this resolution and Saddam doesn't leave. And there's a series of other resolutions until the end of January 1991, when a US led coalition goes into Kuwait, evicts Iraqi forces, pushes them a short distance into Iraq, and stops after 100 hours and this is an extraordinary kind of adrenaline boost to the UN system.

00;33;16;16 - 00;33;39;23

Greg Fox

Look what we accomplished. You know, the charter, as I said, was envisioned as a response to World War Two. You know, we have to stop dictators from invading and annexing their neighbors. We couldn't do that for 40 years. And now we just did it in relative terms. It went really quickly and really well. And so this also gave this kind of adrenaline boost to the collective security system.

00;33;39;25 - 00;34;04;01

Greg Fox

So when things start going bad in Somalia, you know, as you mentioned, by the end of 1992, it seemed that 300,000 people had died. The Security Council responds first, in January of 1992, by imposing arms embargo on Somalia to try and decrease the amount of weaponry and passes a series of other resolutions. And we can talk about what those say.

00;34;04;01 - 00;34;38;09

Greg Fox

But the idea was that there would be security provided to the aid distribution agencies that would stop the clans from using food as a weapon. That didn't really work. The clans really didn't back down. The clans were participating in a peace process which was taking place next door in Ethiopia that the UN was sponsoring. But there was a consensus among Security Council members that that wouldn't get going until the clans believed that they couldn't get what they wanted through force.

00;34;38;16 - 00;35;02;24

Greg Fox

And there was also a sense on the part of the aid agencies that they really couldn't effectively distribute food unless there was a more secure environment. And so what happened over a period of about a year was that the Security Council gradually expanded the mandate of the UN forces, and there were two U.N. operations. The acronym was unison.

00;35;02;24 - 00;35;38;16

Greg Fox

There was unison one, there was unison two. At a certain point, the secretary general, Boutros Boutros-Ghali, at the end of 1992, reports to the Security Council and says, look, the status quo is unsustainable. Here's a series of options for you to consider. And the options were a spectrum of funds doing nothing, which clearly he didn't think was acceptable to authorizing a incredibly robust UN force that would have the authority to use force throughout the entire country and, you know, essentially wrest control from the warlords.

00;35;38;21 - 00;36;03;20

Greg Fox

Boutros-Ghali was a savvy negotiator. You know, you present a spectrum either end of the spectrum is unacceptable. So, of course, you know that the council is going to choose something in the middle. And they did. They chose his fourth option, which created a parallel authorization that in the Security Council talked about a group of member states being authorized to use all necessary means to restore order in Somalia.

00;36;03;26 - 00;36;33;26

Greg Fox

This was understood to refer to the United States, because then President George H.W. Bush had offered that the U.S. would send a marines to Somalia to do some of the hard fighting that would be difficult for UN forces. You know, in December 1992, the Security Council agrees with the Secretary-General, and the United States takes the US up on its offer and passes resolution 794, critically invoking chapter seven of the UN charter.

00;36;33;29 - 00;36;58;06

Greg Fox

In chapter seven of the charter is the portion that allows the Security Council to create binding legal obligations, and so when the Security Council says to all the factions in Somalia, you can't interfere with food aid, you can't attack relief workers, you can't do you know, all these other things that contribute to instability that's considered a binding legal obligation.

00;36;58;09 - 00;37;25;28

Greg Fox

Interesting question that may arise in some people's minds. International law is all about relations between countries. The United Nations itself is an organization made up of countries of states. How is it that that kind of organization can issue legal mandates to non-state actors like warlords? They're not members of the UN. They generally don't have much in the way of international legal personality.

00;37;26;04 - 00;37;47;21

Greg Fox

Where does the Security Council get the authority to do this? That's a kind of legal innovation, clearly not envisioned by the drafters of the charter, but it's something the council has been using ever since. Why? Because most of the conflicts around the world since the end of the Cold War have been civil wars. And necessarily in any civil war, one party is going to be a non-state rebel group.

00;37;47;27 - 00;38;20;24

Greg Fox

And so that's a power that the Security Council wants to use all the time. Back to these resolutions. As I said, they escalate in their severity and we kind of move ourselves up to June 5th in 1993, when a group of Pakistani peacekeepers operating through the UN force know, some two are attacked by the forces of one of the clan leaders, a guy named Mohamed Farah Aideed, and 24 Pakistani peacekeepers are killed.

00;38;21;01 - 00;38;53;29

Greg Fox

That is deemed unacceptable. The next day, the Security Council passes another resolution saying that and saying critically that the individuals who are responsible for that attack will be held individually responsible. Another innovation responsible by Who? There's no permanent international criminal court. There's no functional Somali courts. Are they going to be extradited back to the United States? Does an American court have jurisdiction over a Somali citizen killing a Pakistani citizen in Somalia?

00;38;54;05 - 00;39;17;15

Greg Fox

That seems to be open to question, but the Security Council is obviously not happy. So the security Council says, go get these guys. And, you know, this is something I remember from the time this was an outrage. You know, the UN is there to help the Somali people to do good. And Pakistan contributed these peacekeepers because they believed in that mission and they're murdered for it.

00;39;17;18 - 00;39;44;22

Greg Fox

We can't allow people like Aidid to get away with this. And so there was a sense that the honor and integrity and kind of mission security of the UN was at stake, and we had to respond. And that brings us to October 2nd of 1993, when Task Force Ranger, which was the quick reaction force that the US had established, goes out to try and capture the number of general that needs it in Mogadishu.

00;39;44;25 - 00;40;04;10

Jonathan Hafetz

That's such a helpful context to understand the movie. You know, as you say, it's an action movie, but all this is just in the background, but it's kind of there. I mean, the movie does depict the UN operation. Clearly. The UN is the sort of overarching operation, but clearly you have the US military force, and the US Rangers and the Delta Force operators were leading the primary military intervention.

00;40;04;15 - 00;40;24;11

Jonathan Hafetz

And there's a great scene early in the movie between Sam Shepard character, the American general who oversees the operation, and one of the Somali prisoners. It's a businessman who is high level and appears to have been supplying arms to added. And there's just great dialog between them, and it captures what you're saying.

00;40;24;13 - 00;41;00;24

Movie Dialogue

General Garrison. Colonel, thanks again. These are Cuban bolivars, and also Soros is. Miami, my friend, is not Cuba. So you're not catching Aidid is becoming routine. We were trying to catch a they were trying to catch me up. But I made that important. I do think so. It was two businessmen trying to make a little. So in goes to these militias you've been here with six weeks, six weeks.

00;41;00;24 - 00;41;34;06

Movie Dialogue

You're trying to catch the general. You put up posters, $25,000 for this, this gunfight at the okay corral, the it's it's okay. Do you think bringing me in would make him suddenly come to you making more than I video. Interior sleeps, papers, beds, mattresses, militia. We're not leaving Somalia until we find. A legal fight. Don't make the mistake of thinking.

00;41;34;06 - 00;42;00;16

Movie Dialogue

Because I grew up without running water. I am simple, general. I do know something about history. See all this? Simply shipping more to more without a lot of Atkins. All right, boys, ideas. Well, I wouldn't know about that. I'm from Texas. It's a garrison. I think you shouldn't have come here. This is civil war. This is our war.

00;42;00;18 - 00;42;12;18

Movie Dialogue

Modules. 300,000 dead in county. That's not a war, mosquito. That's genocide. And you enjoy that? Yeah.

00;42;12;20 - 00;42;35;12

Jonathan Hafetz

So you can hear Sam Shepard, the Sam Shepard character, talking about the famine, the need for the U.S. as a proxy for the international community intervene and put a stop to it and to get the deed and to restore order. So I think that scene kind of captures a lot of what you're saying in terms of setting up what's going on in terms of the time and the US view and the view of the international community.

00;42;35;15 - 00;42;58;20

Greg Fox

Yeah, absolutely. And I think the movie does a good job in putting out the opposing arguments for and against this sort of intervention. Edelman, the Josh Hartnett character at the beginning of the movie is the idea, as he says, at some point, you know, you look at a situation like Somalia where there's famine, there's anarchy, and we have a choice.

00;42;58;20 - 00;43;22;23

Greg Fox

We can neither join or watch. And it's pretty clear which one he thinks we should do. But at the end of the movie, you know, you hear a kind of voiceover from him and he's saying, you know, what did we accomplish here? Nobody asked us to come. What are we even doing? Meddling in somebody else's armed conflict. And those sorts of debates were going on at the time as well.

00;43;22;25 - 00;43;52;00

Greg Fox

In international relations terms, it's often described as the kind of idealist versus realist debate. You know, the United States should only use force when its vital interests are implicated. And as hard hearted as it might be, a famine in Somalia or even a famine that results from human activity in Somalia doesn't implicate vital US interests. And so we shouldn't send our troops, expand our funds, expand our political capital in responding to something like that.

00;43;52;02 - 00;44;18;18

Jonathan Hafetz

Yeah. You talked about the sort of developments on the international front from the U.S. context. You have the Vietnam War, right, ending in the mid 70s, which has a huge impact in terms of caution against military intervention. And then, as you mentioned, you have the Gulf War, the first Gulf War, which is viewed as a success. And things start to shift in a way, from the U.S. perspective, you have the intervention in Somalia about two decades after the Vietnam War.

00;44;18;20 - 00;44;38;16

Jonathan Hafetz

It seems like some of the backlash to Vietnam has softened, and the US is now intervening again until, as we discuss, we have the debacle at the Battle of Mogadishu and things kind of go back. So it's like there's developments on the international level. But there also seem to be some developments in the U.S., in part because of what happens in the Gulf War and passage of time from Vietnam.

00;44;38;18 - 00;45;05;18

Greg Fox

Yeah, you're absolutely right. I mean, people refer to something called the Vietnam syndrome, where there's such distrust of the government rationale for projecting U.S. power abroad, that there's almost a reflexive opposition to any use of force. You know, regardless of the circumstances. We referred to the first Gulf War as a success. And I think it's kind of retrospectively seen as something that was relatively uncontroversial.

00;45;05;18 - 00;45;30;19

Greg Fox

It was incredibly controversial. President George H.W. Bush sought Senate approval for U.S. forces. And I think the vote was it was only 2 or 3 votes in favor. There was an enormous amount of opposition. So this post-Cold War movement, I think, may have softened that opposition. But as you say later, we'll see that it kind of comes roaring back almost immediately in the aftermath of the debacle.

00;45;30;21 - 00;45;54;01

Jonathan Hafetz

Well, Greg, you compare this to the Gulf War and how the Gulf War set the stage for what we see in Black Hawk Down. But the Gulf War was a different kind of conflict, I think, as you suggested. Then, the conflict in Somalia, which is a civil war. So how did those differences play out between intervening in an internal conflict like Somalia and what we would call an international conflict, like the first Gulf War?

00;45;54;03 - 00;46;19;18

Greg Fox

This is a really important question. I think one thing that the movie does really well is almost from a visceral perspective, show you how difficult it can be to intervene in a civil war. So in an international war that is, you know, the troops of one country cross an internationally recognized border and go on to the territory of another country in contravention of the UN charter.

00;46;19;22 - 00;46;43;22

Greg Fox

That can be reversed if those troops are sent back to their home territory. And the peace can be secured by making sure that those troops don't cross the border again. And one thing the UN have been doing for quite a while was sending peacekeeping missions to basically sit on those borders, not as an enforcement mechanism that most UN peacekeeping operations during the Cold War were lightly armed.

00;46;43;23 - 00;47;06;12

Greg Fox

They never even pretended to be able to repel a new advance by one of the parties. But there is a symbol of the parties agreement to end the conflict and the international community's interest in helping the countries work out their differences peacefully, so the peace is secured for the long term by two countries. Just kind of going back to the status quo ante in a civil war.

00;47;06;18 - 00;47;31;23

Greg Fox

By contrast, what usually precipitates the fighting is some sense that the fundamental governmental structures, or the group of people running the country, or even the configuration of the territory itself is illegitimate. And, you know, rebel groups take up arms because they think they're being oppressed by the central government and they want them out, or they think they never should have been in this country in the first place.

00;47;31;23 - 00;47;56;24

Greg Fox

And they want to secede in form their own country. And sometimes it's a combination of both. How does an outside force stop the fighting in those circumstances and secure the peace long term? You're going to go into a conflict zone where your goal can't be to kind of separate the two parties back into their respective territories. Everybody lives in the same country, and the peace can't be secured by keeping the parties separate.

00;47;56;27 - 00;48;21;29

Greg Fox

Everybody at some point, in the best of circumstances, is going to have to come back and participate in the same governing structures, you know, live under the same laws. You know, live next door to people who, you know, used to be shooting at when the conflict was lost. And so the intervention in civil war presents three challenges that I think international one has partly dealt with.

00;48;21;29 - 00;48;44;00

Greg Fox

But, you know, really not in any completely satisfactory way. The first is, is it the business of any outside country or an organization like the UN to resolve a civil war? Imagine if there had been a UN around in 1861. Would we have said yes, come in and negotiate a peace with the Confederacy, and maybe we can work something out.

00;48;44;00 - 00;49;02;21

Greg Fox

And, you know, yeah, they can have slavery for this amount of time or in this territory. No, we said this is an internal matter. You know, we, the union believes that we are right and we are going to fight this war to the end because we simply reject this view of the nation that the Confederacy represents. You have to overcome that barrier.

00;49;02;24 - 00;49;27;21

Greg Fox

And the UN, essentially, the Security Council has done that, you know, during the 1990s in the period from including but following the Somalia intervention, where a key phrase in chapter seven of the charter that is essentially a jurisdictional phrase that, says when it's okay for the U.N., for the Security Council to invoke chapter seven, the phrase is a threat to the peace.

00;49;27;21 - 00;49;50;01

Greg Fox

And the Security Council has interpreted that language to mean pretty much anything that seems like a problem the Security Council should address. At the time the charter was drafted, a threat to the peace probably meant Hitler massing forces on the border of the country. Who was going to invade. That's a threat to international peace. And the Security Council can act preemptively.

00;49;50;04 - 00;50;10;27

Greg Fox

But the Security Council has described civil wars as threats to the peace. It's described famine as in Somalia, as a threat to the peace. It's described sort of widespread international crimes as a threat to the peace. Not long after the Somalia debacle in Haiti, the Security Council described the overthrow of an democratically elected government as a threat to the peace.

00;50;11;00 - 00;50;28;16

Greg Fox

It's become, you know, pick your favorite cause in the US Constitution that is so elastic as to have no meaning. That's that's happened. So that first barrier has been overcome. The second one is how do you stop the fighting? And you can see in the movie it's almost impossible to tell who are the combatants, who are the civilians?

00;50;28;16 - 00;50;56;20

Greg Fox

Where are they headquartered? What's their objective? Who are their leaders, how you stop that sort of thing and what the UN has been doing to overcome this problem has been to try and get peace negotiations. Going to a point at which there's an agreement on a safe environment. And so there are hundreds and hundreds of civil war peace agreements that the UN, but also some other international organizations have negotiated.

00;50;56;22 - 00;51;16;10

Greg Fox

And what the agreements do is express the consent of all the parties, government parties and the rebel parties that the UN can send in forces. You know, sometimes the parties live up to those agreements, sometimes they don't. But that consent is generally seen as an essential prerequisite. The third is, you know, how you secure the peace for the long term.

00;51;16;12 - 00;51;44;18

Greg Fox

As I said, civil war start because of this perception of the legitimacy of existing governmental structures and leaders. And the solution that the UN has been following, for better or worse, is liberal democracy. You have a vision for the country that you think is a valid one. Make your case in an election and we, the UN, will come and help you, you know, set up an election, we'll supervise it.

00;51;44;24 - 00;52;08;23

Greg Fox

We'll tell you if it's free and fair or not, and do all the other things that you know, try and support liberal democracy, rule of law, independent judiciary, things like that. That has been a little bit less successful. But, you know, it's hard to think of an alternative unless the UN is going to somehow, you know, assume control over a particular country, which I should say they have done for periods of time.

00;52;08;23 - 00;52;32;13

Greg Fox

I wrote a book called Humanitarian Occupation about places like East Timor and Kosovo, where the international community for a period of time became the government because it was simply too difficult to get the local parties to kind of organize the transition from war to liberal democratic politics. And so the Security Council authorized, you know, this temporary to administration.

00;52;32;16 - 00;52;38;24

Greg Fox

And that's been successful in some places, probably less successful in more places.

00;52;38;26 - 00;53;05;08

Jonathan Hafetz

Yeah. Just to go back to what you were saying, sort of how the first Gulf War helped create the kind of groundwork or view that, you know, there could be more intervention. I'm reminded that George H.W. Bush, the first Bush administration, made the decision after Iraq was pushed out of Kuwait not to go into Iraq. So all the questions and all those complexities that you just talked about in terms of internal conflicts were in a sense, avoided in the first Gulf War.

00;53;05;10 - 00;53;17;20

Jonathan Hafetz

And I think many, if not all of them were confronted in one way or another. In the second Gulf War, when the US went in and removed Saddam Hussein. So it's interesting how they're very they're very different outcomes. The two interventions.

00;53;17;22 - 00;53;39;04

Greg Fox

Yeah, absolutely. That's a very good point. Yeah. George H.W. Bush avoided a whole lot of trouble by not sending US forces to Baghdad, deposing Saddam and then figuring out, what do we do now? We're an occupying power. Do we just kind of leave and see what happens? What do we do with Saddam himself? All of those issues, you're right, came up in 2003.

00;53;39;06 - 00;54;03;21

Greg Fox

We pretty much botched it in 2003. Maybe Bush the Elder would have been better at it than his son. Maybe that's one difference, but absolutely one interesting aspect of that decision not to go all the way to Baghdad was the rationale. In his memoirs, George H.W. Bush said, the reason I didn't go was because the Security Council didn't give me authority to go.

00;54;03;27 - 00;54;28;10

Greg Fox

The Security Council Resolution 678 from 1990, which authorized the use of force, he says, only authorized use of force to reverse the invasion. And so once Iraqi forces were out of Kuwaiti territory, that had been accomplished and he had no more mandate to go further, you can buy that or not. But what's interesting to me is that it's an international war rationale.

00;54;28;13 - 00;54;52;24

Jonathan Hafetz

Yeah, it's a fascinating piece of history and the way that was relied on, whatever the motives might have been turning to the battle. Right, which occupies to the central part of the movie, the Battle of Mogadishu. And I think the movie alludes to this visually and through some lines of dialog where you talk about who the U.S. forces would be able to shoot, who they should not shoot, references to rules of engagement, what the referencing is.

00;54;52;24 - 00;55;15;27

Jonathan Hafetz

Well, the referencing U.S. military law and regulations, but they're also referencing the larger backdrop of international law of armed conflict, international humanitarian law, which talks about how force can be used within a military operation, with the ultimate purpose of protecting civilians or minimizing harm to civilians, taking kind of an HL frame and this principle of distinction between combatants and civilians.

00;55;15;27 - 00;55;18;16

Jonathan Hafetz

What did you make of the film and what's depicted there?

00;55;18;18 - 00;55;39;06

Greg Fox

Well, I mean, I think you can tell from our discussion so far that the movie avoids discussion of legal principles as such, but I think it does a pretty good job in kind of describing what the ground rules are. There's a scene where the US commander of the forces is kind of giving a pep talk, to the soldiers before they go out.

00;55;39;06 - 00;55;58;27

Greg Fox

And I think this is the Sam Shepard character, although I can't remember. He says, be careful what you shoot at. People live there. And what he's saying is you are going to encounter a lot of people who are not engaged in combat. There are going to be rational society. So they're going to be women who are not involved in combat.

00;55;58;27 - 00;56;24;10

Greg Fox

They're going to be children, they're going to be elderly people, and then they're just going to be people going about their lives who are not shooting. And the US soldiers are told, you know, stay away from those people. And as you say, this reflects a kind of fundamental principle of the law of armed conflict, which is variously referred to as international humanitarian law or ideal for short, where the law of armed conflict or the law of war.

00;56;24;16 - 00;57;03;00

Greg Fox

It's a body of rules most fully embodied in the four Geneva Conventions of 1949, that put limits on conduct in warfare. They apply to all kinds of armed conflict, so there's no overlap or no intersection between the body of law that we've been talking about up to now, which is the rules on when force can be used. Doesn't matter if you are an unlawful aggressor like Saddam Hussein, or you are a country exercising lawful self-defense like the government of Kuwait, you still have these limits on what you can do in armed conflict.

00;57;03;00 - 00;57;27;05

Greg Fox

You know the ends do not justify the means. And one of the central principles of international humanitarian law, as you said it, this principle of the distinction that there's a difference between combatants and those who are not combatants in the primary group. And the one that we're really talking about here is civilians. But it's also important to know that humanitarian law also focuses on those who are sick and wounded.

00;57;27;06 - 00;57;58;11

Greg Fox

There's a whole Geneva Convention about them, and there's prisoners of war. There's a whole Geneva Convention about them. And those people cannot be directly targeted. You know, you can't take prisoners of war out, shoot them. You can't directly target civilians. That's not such a hard principle to follow. If the circumstances are clear. But there are two situations, and we see both of them in evidence in the film where the circumstances are absolutely not clear.

00;57;58;15 - 00;58;20;00

Greg Fox

The first is when you just can't tell who's a civilian and who's a combatant. There's a scene in the movie where it's from the perspective of an American soldier holding a rifle, and there's a woman out in the street and she's looking down at something on the ground, and the soldier is saying to himself out loud, don't do it, don't do it, don't do it.

00;58;20;10 - 00;58;34;07

Greg Fox

Meaning don't pick up a gun, because if you pick up a gun, then I'm going to have to shoot you. At this point, just standing there, you're a civilian. But if you become a combatant, I'm going to have to shoot you. And I don't want to do that. And she goes for something on the ground and he shoots her.

00;58;34;10 - 00;58;57;08

Greg Fox

It's very difficult, especially in this fast moving urban warfare, to know who's a combatant, who's not. And there's a legal principle. So we can talk about, you know, how you make that distinction. The second complication is when a military is not targeting civilians directly, but there's a fairly high likelihood that some civilians are going to be killed when a clearly military.