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International Law

Assessing failures of “Humanitarian Intervention”: Finding a “non-traditional”approach

Anant Mishra

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Within the context of traditional theory of international relations humanitarian intervention is referred as “intervention-from-above”, highlighting the “tactics of intervention” by various states, international institutions, government sponsored think tanks and international aid organizations. At the global level, flow of international aid is unidirectional (traditionally flowing from North to South); although, intervention is not only limited to North, but may occur regionally in the South too. Historically, the world has witnessed tensions highlighting “certain drawbacks” in the global legal system particularly within the context of a donor country “crossing humanitarian boundaries, sovereignty, the principle of non-intervention, while purposefully meddling in the regional affairs of the host”, violating every nomenclature of humanitarian assistance and instigating dilemma among probable future host economies.

Today, host countries are forced to question the objectives of donor economies. Many states begin formulating an “after-effect strategy” in case the donor intends to violate, in the light of many least economic developed economies being host, fewer states respond. From the aforementioned arguments, the questions that challenge policy makers of today are: Does humanitarian intervention bring results? Does it truly assist the host economy? If it does, which is the best effective and efficient plan of action?

Policy makers must focus their attention on the “flaws in international law highlighted in the aforementioned arguments”. Furthermore, historically it has been seen that, nations ignore legal guidelines and international laws which does not benefit it while giving jurisprudence to politics than the international laws.

Today, the focus of the article will be on the three traditional pillars of humanitarian intervention, the donor’s “capability” to assist the host, the donors “interests” in providing assistance to the host, and the “after-effects” on the host; in an effort to “effectively” understand and identify factors responsible for recent “negative outcomes” from humanitarian interventions while identifying alternative non-traditional approaches of humanitarian intervention shifting the focus of political thinkers and strategic experts from military theories, while giving special emphasis on the role of non-government development agencies and civil society organizations. Keeping all relevant actors in play, it is literally impossible to predict the success of “traditional grass-root focused ”humanitarian intervention especially when the “much advanced top-down approach” continue to fail.

The quest to identify non-traditional theories of humanitarian intervention, also termed by strategic experts as “bottom to top approach”, will be the focus of this article. It will be safe to say that, such non-traditional approaches, will depend majorly, on intervention policies of humanitarian aid agencies and public works development focussed institutions of non-governmental organizations, development focussed civil society and volunteer groups from the masses, civil rights advocacy groups and organizations advocating for a specific society.

Decoding the myths

Political and Strategic experts have, classified, two types of traditional “humanitarian intervention” theories. The first theory relies on aggressive military intervention to fulfil strategic objectives of the host and is carried under the leadership of one or more host states, or by unanimously approaching the United Nations Security Council and other regional and international institutions.

The first theory comprises of intervention tactics, which could fulfil positive humanitarian objectives of great benefit for the host, however it remains secondary to the intervention objective implemented by the host. For example, repetitive acts of crimes against humanity, horrific abuses by successive regimes could come to an end through an intervention which is designed specifically by the host government. It is important to note that, such intervention is rare, especially considering the “humanitarian” view of this form of intervention, instead their long presence could result in oppression against the masses forcing the host to use all forms of excessive force.

Some historical examples include devastation of Germany during World War II, the Liberation of Bangladesh in 1971, and the invasion of Cambodia by Vietnam in 1968. Policy makers must understand that, interventions at such level involves specific military and political goals that starts with “intervention and occupation” for an indefinite time.

In this form of humanitarian intervention, genocide, crimes against humanity and violence induced on local masses are common. Such acts are destitute to walk among the strategic and military objectives of the host. However, in regions where the host intervened without any strategic objectives, for example intervention on Kurdish regions since World War I, and military confrontation against the indigenous tribes of Amazon, excessive violence induced against human life have been categorically side-lined or purposefully ignored.

In the second theory of humanitarian intervention, human rights abuses instigate an “aggressive response”, although without any strategic advantage. If the intervention does takes place, it will be implemented without a “clear sight, objective or commitment” on the host intervening state, the commitment would be largely to challenge the political structure or the authority responsible for carrying such horrific crimes. Strategic and political experts refer this scenario, which remains active in the Middle East today, “the CNN factor”, an aggressive wide scale visual representation of horrors and distress particularly depicting crimes against humanity, stressing the masses of West to force their governments to response, particularly “Americanised” nations.

If the agendas established by policy makers are restricted, and the actors tasked to “bull-work” the humanitarian intervention agendas follow strict discipline and designated guidelines, simultaneously earning the trust of the masses, humanitarian intervention in this platform could bring relief to the socio-economic havoc wretched life of the masses. This initiative has been implemented for the Kurds living in northern Iraq post-Gulf War, in the early years of relief and rehabilitation initiatives in Somalia (before invasion),and deployment of UNPROFOR aid and relief units for the then civil war-stricken masses of Croatia, the then Bosnia. In the aforementioned examples, however, the strategic objectives to eliminate the factors responsible for the crisis were absent, on larger extent, the crisis devastated the lives of millions.

If the state intervening in the crisis receives armed responses that could increase volatility in the region, then the state forces intervening could deploy evasive tactics and steer away from the confrontation. The participation of Washington has been vital with relevance to its extensive experience in humanitarian intervention. During Clinton administration, the US aggressively shifted its policy of “strategic objectives dipped humanitarian intervention” and an example to this “doctrine” was largely visible during the “initial deployment of medical and food aid workers” deployed in Somalia, eliminating the “strategic discourse” while establishing an example of “stringent and self-restraining” regime. The new established theory was a perfect example of “intended humanitarian intervention” of a state, having an edge over responses taken by globally established international institution.

The change in international relations dynamics followed by acute regional, religion/ sectoral “coloured” violent conflicts has resulted into numerous debates on “humanitarian intervention as a viable tool in global politics”. The debate however, failed to separate the two theories of humanitarian intervention aforementioned discussed. This has resulted in “fragmented policies which not only failed but also became a principle factor in fuelling regional conflicts, further deteriorating an already deteriorated situation” leading to discontent and apprehension towards humanitarian intervention, while fuelling rage among the local masses and apprehensive governments towards UN actions. Clearing the “thick air” is not the purpose of this article, but many progressive steps could be taken in an effort to identify alternative theories.

Establishing outcomes from intervention

To begin with, a political tool such as an “intervention”, if introduced as a traditional mechanism in foreign policy, is troublesome even without the presence of “strategic action”, witnessed from the example of US intervention in Vietnam, or Soviet Union intervention of Afghanistan.

Using military superiority and using it to achieve desired political objectives/agendas is increasingly becoming difficult inspite of the “rightist regimes in the West”. The traditional tools of foreign policy (aggressively used by Washington during post-World War II until the end of Cold War) such as “cloak and dagger diplomacy”, “gunboat diplomacy” which elevated Washington’s position as a hegemon, benefitted many US intelligence agencies in holding many economies hostage without any resistance. In the light of globalisation, tradecraft tactics evolved and advanced weaponry, began playing a much larger role.

In 1983 when a single truck exploded inside the barracks of US soldiers, Washington which was already on an edge, withdrew the remaining stationed US forces and shifted the US foreign policy which was focussed on rebuilding and restructuring city of Beirut during post-1982 war. An aggressive President Bush Jrdid not undertake restructuring and rehabilitation initiatives in Iraq, which could have forced Washington to deploy forces in Iraq which could have instigated terror factions in targeting US soldiers. Bush understood the “careful policies implemented by Clinton administration ”particularly the actions taken by Washington in Somalia an example of “self-limiting” the objective to strictly humanitarian intervention. His objectives were very clear, turning Iraq’s fate into Bosnia was all he feared.

Since 1989, the traditional concepts of international relations have evolved. The pragmatic but traditional theories that were applicable in IR are fairly limited. This has largely been a “misconception” among traditional international relations theorists, military and political experts making their expectations uncleared:

a) Even today, traditional theorists continue to believe, that cooperation and coordination among the nations could only be effective within the UN.

b) The aforementioned notion comes from the successful restoration of Kuwaiti sovereignty after the deployment of UN forces. The resultant of the conflict created a biased approach on a half-baked truth followed by rhetorical idea that combined security initiatives would be sufficient to mobilise large troops and financial assistance to implement resolutions passed by the United Nations Security Council. The traditional theorists failed to acknowledge the presence of Washington’s “hunt for oil” and Israeli’s “security dilemma”. They also failed to foresee the lust for Middle East economies to acquire nuclear weapons.

c) Numerous severe simultaneous humanitarian crisis erupted which resulted in dictatorial regimes and failed states. The continent of Africa witnessed subsequent collapse of imperial regimes while the Central Asia witnessed the collapse of Soviet Union and the then Yugoslavia, which paved the way for ethnic conflicts, civil war and nationalist dictatorial regimes.

d) It was by now evident that, cost-efficient intervention will not be effective and even an objective focussed intervention will not bear desired results fearing which no political leadership was willing to accept the high cost of collateral damage during uninsured even in the name of “vital national interests.” Reinforced by poor political leadership in intervened states and their failure to adhere or implement any concrete domestic policy along with subsequent challenges to domestic security, decision makers “waited and watched”.

e) In colonial dominated regions particularly Africa, Latin America and Caribbean and South Asia, the concept of“ humanitarian intervention” represented the interest of traditional colonial forces in the region, paving a way to regain dominate the lost territories, particularly those with significant Muslim population. This “delusion” idea was further fuelled by the West’s retention of oil in the Gulf but refraining from taking any action against “systematic killing, ethnic cleansing” of Muslims in Serbia. Furthermore, the use of technology in the urban setting especially in the regions of Mogadishu to hunt warlord Aidid, reinforced their idea.

Strategy or Politics?

Bringing the focus back on political leadership, Bosnia was “political fore-play” which backfired. Argued by ethics professors even today, the reluctance to interfere, even after witnessing the horrors in war, mass killings, rape, gender-based violence and genocide reminding the days of World War II gripped Europe, the world has been reminded of another holocaust. It is nothing less than a betrayal to the lives of people who took a pledge “Never Again”, the pledge was disrespected by the ugly truths of international political world. When thousands of leftists were brutally murdered in Singapore, the West particularly Washington compensated the loss of lives with the fear of communist controlled Singapore. When Indonesia invaded East Timor, dismantling all trumps (sovereignty, national and territorial integrity and right to existence) of international relations, instigating a policy on mass rape, murder, extensive killing and genocide which resulted in the deaths of over half of the then population, intervention in all forms remain absent.

Perhaps evidently, inspite of genocide carried by communist regime on large scale in Cambodia, forced the West not to intervene (presence and support of China)in the Vietnam invasion of Cambodia which resulted in the end of Khmer Rouge. Policy makers must understand that, the decisions under taken by the West form a pattern: strategic objectives outweigh even the harshest and deplorable humanitarian crisis.

The aforementioned statements points towards the fact that, there is an imminent need to re-evaluate and reassess humanitarian intervention policy. Today, the masses will not accept the decision to “fight someone else’s war” irrespective of deplorable circumstances. This could come as a relief for many rightist political leadership, but it practically “chokes” the nation’s policy for humanitarian intervention.

A failed political leadership to blame?

It is important to note that, the political leadership reluctance highlights the “inadequate importance” given to the segment of humanitarian intervention in international diplomacy coupled with the “saga of failure” of global powers and international established institutions failures in the past. Coupled with the failure of political will and leadership, identifying “strategic interests” and formulating a strategy resulted in some of the worst humanitarian crisis in Haiti, Bosnia, Somalia, Rwanda. The larger responsible segment of this failure goes to liberal “appeasing” foreign policy coupled with strategic interests and domestic security preferences. Historically, Washington was pushed to take a leading role and pulled by its own masses particularly when the “stakes were too high” overseas. This “tendency” continues to thrive within power nations which is evident from the on-going Rohingya crisis in South Asia.

The fundamental issue with humanitarian intervention lies largely on “intervention” aspect rather than “humanitarian” support, the larger perception remains the same “internal violence being the only factor capable of changing the dynamics of the domestic policy of a state”. Policy makers must note that, if the nation undertakes the responsibility of providing“ clean water, food, medicine, temporary shelter for refugees and internal displaced conflict-ridden masses” limiting the action to strictly humanitarian, then nations should not consider it an “intervention” even if the host country has not acknowledged or given a formal consent. If the intervening state intents to meddle with the host state’s internal issues particularly in times of internal conflict or civil war, then the intervening state will fail even if its intentions are “humanity centred”.

It is imperative for policy makers to identify or formulate strategies of “humanitarian intervention” without instigating further violence, fuelling crimes against humanity, genocide, factors leading to further deterioration of the host state.

Anant Mishra is a security analyst with expertise in counter-insurgency and counter-terror operations. His policy analysis has featured in national and international journals and conferences on security affairs.

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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International Law

Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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International Law

Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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