Posts tagged ‘international law’

February 23, 2012

Secretary-General: Not the Chief Legal Scholar of the UN

The ever-impressive Laura Rozen sat down with Brazilian Foreign Minister Antonio Patriota on Tuesday for a wide-ranging conversation. Among the topics that came up was ongoing tension among the international community regarding Iran’s nuclear program. An IAEA mission left Iran this week after failing to gain access to the Parchin military facility to the inspection team on the ground. Brazil and Turkey have been working together for years now to attempt to find a solution to the stalemate outside of the P5+1 negotiation process, so it’s no surprise that Minister Patriota wanted to discuss the matter. What truly caught my interest was his statement regarding the potential for Israeli preemptive strikes:

“No doubt adding an additional flashpoint of military action in a volatile region will greatly exacerbate tensions,” Brazilian Foreign Minister Antonio Patriota told Yahoo News in an interview in New York Tuesday. The international community should proceed “with the utmost caution.”

“There is a role for him in this,” Patriota said he had proposed to the UN chief. “One sometimes hears the expression, ‘all options are on the table.’ But some actions are contrary to international law.”

Patriota’s comments come as the United States, United Kingdom and Russia have asked Israel both privately and publicly not to carry out a preemptive strike against Iran’s nuclear facilities.

I agree with Mr. Patriota that an Israeli strike on Iran’s nuclear facilities would be the catalyst for an even more unstable Middle East, and that states should actively seek to discourage Tel Aviv from taking such a course of action. I further believe that the United Nations most certainly has a role to play in continuing to foster negotiations between Iran and the rest of the world on how to verify that its nuclear program is peaceful. I’m slightly more hesitant about his stressing the need for the Secretary-General to weigh in.

The United Nations Secretary-General has many jobs as the head of the world’s most far-flung international organization. As the chief of the Secretariat, he manages thousands of civil servants around the globe, each strive to improve . As the face of the United Nations, Mr. Ban has to bear the brunt of criticism when things go wrong, when his nominal employees perform horrific acts, or when states dig their heels in against taking strong action counter to the rest of the world. Under the Article 99 of the UN Charter, the Secretary-General has a role in maintaining peace and security, having the unilateral ability to bring items of concern before the Security Council. Here’s where things get more conflicted. A denouncement of Israel planning strikes against Iran is perfectly valid as a practical matter; as a matter of legal principle, however, I’m uncertain whether “legal scholar” is a hat the Secretary-General does or should wear.

The UN Charter maintains some vagaries when it comes to Article 51’s defense of self-defense. International law experts have grappled with its terms for over six decades now, though the majority cite the need for “an armed attack” to occur prior to being able to invoke the clause. This becomes difficult to align with the notion of the preemption of an imminent attack, as intelligence-gathering has gained in sophistication since the drafting of the Charter. The cloud surrounding the concept if anything has grown murkier over the last decade, in no small part thanks to the Bush Administration’s acceptance of “preventive” action. Kofi Annan had no such qualms, however, addressing the General Assembly in 2010 denouncing the concept in its entirety. That was an immediate past Secretary-General, not a sitting one, though Annan didn’t hesitate in speaking out against the US’ war against Iraq.

If the Secretary-General does speak out against Israel taking unilateral action, it should be seen as a plea to keep the situation from spiraling out control and exacerbating the current threat to international peace and security. I’m less certain that it should be seen as international condemnation of the principles behind the theory of preemptive action and a rebuke of the concept in general. I personally feel a great deal of ambivalence towards the concept; the UN Charter leans strongly against its legality, and yet I have trouble squaring away that were I to be a world leader, I would ignore accurate intelligence to uphold it. It’s a matter that should be debated and rightly deserves a renewed focus in the current environment, but I believe that debate should be at the International Court of Justice, not the halls of the Secretariat.

January 30, 2012

UNSC approval is vital to the use of force – True or False?

On Talk of the Nation today, Anne-Marie Slaughter made the case that should Russia not allow the United Nations Security Council move forward on Syria, the world can act without them. More specifically, she laid out a further explanation of her Atlantic piece on Syrian intervention:

Fourth, the intervention would have to receive the authorization of a majority of the members of the UN Security Council — Russia, actively arming Assad, will probably never go along, no matter how necessary — as an exercise of the responsibility to protect doctrine, with clear limits to how and against whom force could be used built into the resolution.

During the NPR interview, according to Twitter, Slaughter clarified that a “supermajority” of states on the Council must vote in favor of intervention for the international community to act without a resolution in their favor due to the veto of a permanent member. Unfortunately, I haven’t been able to listen to the interview yet, so I’m unsure about whether she was speaking in reference to the draft resolution currently on the table, as introduced by Morocco, or if she means a hypothetical resolution under Chapter VII.

No matter the context, I had trouble with this when she first published the article, and I’m having even more issues with it now. The backbone of Professor Slaughter’s argument, and that of other interventionists, is that action in Syria is required to support the developing norms of the international community, namely the Responsibility to Protect. The problem with this is that in promoting the advancement of this norm, it would seem that going around codified international law would be required to do so. I am most certainly not an international law expert, but it would seem to me that codified laws take precedence over norms, particularly when a great deal of weight has traditionally applied to the approval of the United Nations Security Council to take action.

Great Power politics are undeniably a mess, particularly in the aftermath of the Arab Spring. I’ve argued previously that I don’t believe that acting without the Security Council in practice is an ideal solution. Dodging the Council, though, would also prove to be a failure in principle as well. To actively say that a veto in the Security Council should be ignored seems to weaken the institution as a whole. Many of the same people advocating intervention in Syria screamed bloody murder over the Bush Administration launching strikes into Iraq without an authorizing resolution of the Security Council, due to the vetoes of France, Russia, and China. I should know, I was one of them. But the Bush White House at least had the slim thread of “upholding previous UNSC resolutions” as part of their justification. While nobody bought it, at least the effort was made, and it is true that several UNSC resolutions demanding that Saddam Hussein comply with international demands were passed in the past. Likewise, several chances were given to Milosevic’s Former Republic of Yugoslavia to adhere to the wishes of the Council and cease violence against its civilians; a true exhaustion of options building up to force existed. No such history exists against Syria in the Security Council.

It’s my opinion that if you’re going to say that the rules are bad and unfair, you should at least be consistent with it. The UN Security Council can’t be the end decision point in the use of force only in times where you agree with all 15 members’ views. Come out for a change of the rules governing the body wholesale, instead of claiming they can be circumvented in certain situations. There may well be a moral argument for intervening in Syria, but the idea that it’s any more legal to defy the Council in one situation or another doesn’t hold water. Either the UNSC is the final arbiter of international peace and security or it isn’t. And if it is, then the principles on which it was founded, as anachronistic as they may be in the 21st century are still worthy of consideration.

The fact remains that the veto is, as was devised by the Soviets as a condition for joining the UN in the first place, a tool to protect national interests. Well, at present, it is in Russia’s national interest to not have the West intervene in Syria. If, heaven forbid, the United States were to no longer be the sole superpower, we would certainly expect that in the case of a veto that action not be taken against our interests, a principle that was upheld at the height of the Cold War. I do approve of the idea of getting the Syrian National Council to guarantee Russia access to their current naval base in Syria even after Assad falls; it’s one of the few things keeping them from dropping Assad like a hot potato; Unfortunately, Vitaly Churkin’s threats to no longer protect Assad with the veto seems to have gone unheeded by Damascus, leaving Russia in a position where it may well do what it has hinted at in recent press statements.

I’m not entirely sure if there are even enough “aye” votes for the current draft at present in any case, let alone one authorizing force. The whip count may change after Tuesday’s briefing by the Arab League and the presence of several attendees at the ministerial level. But you can count on at least four abstentions, if not flat-out “no” votes. Is this ten the supermajority that Slaughter references? In any case, a “supermajority” of UNSC member states won’t be enough to override, particularly if the resolution tabled is the one that is up for discussion. The political factors on the table, including a peaceful transition to a unity government, can’t be enacted by force with any semblance of credibility in the face of a veto. Or can you only go around the Security Council when force is on the table? It may be a moot point, as with the lack of sanctions and military factors involved, there’s still a slim chance that Russia abstains, bringing China along with it. But in the event of a veto, the international community needs to decide whether the UNSC is the final arbiter on the use of force as it has long held or an obstacle to be overcome.

January 25, 2012

SPACE!: Newt, International Law, and the Extraterrestrial Commons

For those of you without Twitter streams fueled purely by snark, it may have slipped your notice that Newt Gingrich is, and always has been, a giant nerd, particularly when it comes to the territory beyond our atmosphere. Well, today, campaigning in Florida, Newt has managed to out-do himself:

Republican presidential candidate Newt Gingrich called for the creation of a permanent lunar colony that could become the nation’s 51st state and a re-dedication to sending a man to Mars during a sprawling campaign speech Wednesday in Florida.

“I am sick of being told we have to be timid and I’m sick of being told we have to be limited to technologies that are 50 years old,” Gingrich told a cheering crowd.

Gingrich said that his vision was on par with President Lincoln’s call for a transcontinental railroad, the Wright brothers’ push for manned flight, and President Kennedy’s vision to send a man to the moon. Later, he described the rally as “the second great launch of the adventure John F. Kennedy started.”

And in what Gingrich himself described as “the weirdest thing I’ve ever done,” the former House Speaker called for a “Northwest ordinance for space.”

“By the end of my second term, we will have a permanent colony on the moon and it will be American,” Gingrich said.

From some politicians, this would be called “pandering”. For Newt, this is known as “Wednesday”.

Putting aside the untold scientific and logistical problems surrounding Newt’s goals, for all his excitement over development of space, I somehow doubt that he has very much of an idea of what the current law and issues surrounding the use of space consist of. Or if he did, that he wouldn’t like them very much. So I am hereby appointing myself the Gingrich 2012 campaign’s Chief Stellar Law Advisor. You’re welcome, Mr. Speaker.

So where to begin? For starters, let’s make clear that we can’t lay claim to the entirety of the Moon. While the temptation to revert to colonial rules of “We have a flag there, it’s totally ours” is strong, it doesn’t quite work that way. Why you ask? Because of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, better known as The Outer Space Treaty.

“A treaty,” you say, “surely we can’t be have signed and ratified such folly”. Well, we were actually one of the main authors of the text. Bear in mind, when this was drafted, the United States and Soviet Union were still mortal enemies and both possessed space-faring capabilities. It was in our best interest to declare that nobody get the entirety of the Moon, rather than fighting over it. What’s more, the Outer Space Treaty gave us the comfort of knowing that the Russians weren’t going to pull a Ripley on us and attempt to nuke us from orbit.

“Well, the Soviets aren’t a threat anymore, what’s to stop us from just taking the Moon?” That question would be fundamentally flawed in nature. First, there’s no viable weapons systems in existence to actual initiate combat in space. What taking the moon would involve includes arming whatever vehicles we design to replace the space shuttle to take us into orbit, which also doesn’t exist, with conventional missiles.

This leads us to a point that the Bush Administration recognized and fought against the Space Preservation Treaty to ensure: there is no law preventing weaponization of space with conventional missiles. The Obama Administration has backed away from this position, but you can bet that Newt would be heavily in favor of returning to it.

As Chief Stellar Law Advisor, I’d have to weigh in strongly against such a move. If the sea is a global commons, space is most certainly an extraterrestrial commons. There are currently a total of ten countries with the capacity to place artificial satellites into orbit. There are several more who can create satellites, but lack the mechanism to actually place them.

These satellites affect our daily lives in an ever-growing number of ways and to endanger the right of all states to launch items into space, free from the threat of molestation, is vital to our future. Only through international cooperation and dialogue through mechanisms like the Committee on the Peaceful Use of Outer Space (COPUOS), the UN’s body to discuss matters of space, can we hope to maintain the freedom of all states to launch satellites. As a sidebar, I would strongly press Mr. Gingrich to invest more heavily in the UN body with the best acronym in history: UN-SPIDER.

I’m sure there are several out there, including Newt himself, that will argue that the only way we ensure that space remain open is through the same way we do the seas, through being able to project force into the sphere. To that, I counter that the terrestrial methods that we use to influence other states on security matters will remain viable in any future that involves space. Much as the introduction of drones into the theatre does not affect warfare at its core, so too introduction of the space and cyber domains as potentially contested spheres will not fundamentally change the way that states interact with each other. And just as arms control can be achieved landside, so must it be striven for in space.

It’s with the openness of space in mind that the United States has recently announced that it  will be working with the European Union in drafting an International Code of Conduct for Space. As more states gain the ability to launch first satellites, then humans, into space, the already cluttered orbit above the Earth will become even more so. A Gingrich Administration would be doing the United States a disservice if it were to withdraw from these talks, as it almost inevitably would, as it is in our interest to ensure that states abide by a common set of rules of keeping the upper atmosphere clear of debris. Going it alone won’t cut it when it comes to space, especially if we’re to ever make it to the Moon and beyond.

So to sum up, even if Newt’s dreams of moon mining (and whaling) were possible, he’d find that the body of law surrounding his lunar activities more extensive than expected. What’s more, he’d discover that the idea of the United States maintaining exclusive control of Luna and other heavenly bodies would be becoming more and more laughable. It’s almost as ridiculous as the idea that we’re going to have a permanent moon base in just nine years. But still not as laughable as a Gingrich Administration.

December 8, 2011

With a little nudge from WINEP, DC Court rules that Iran aided al-Qaeda

In an a ruling that was largely overlooked last week, a US Federal court came to the conclusion that Iran had aided al-Qaeda in its bombing of US Embassies in the late 1990s throughout East Africa. This ruling is pretty questionable to say the least for reasons we’re going to dig into in a second. Marc Thiessen “broke” the story in a Washington Post Op-Ed today:

Al-Qaeda carried out the attack, but the U.S. District Court for the District of Columbia found that the bombings would not have been possible without “direct assistance” provided by Tehran, as well as Sudan. “The government of Iran,” Judge John D. Bates wrote in his 45-page decision, “aided, abetted and conspired with Hezbollah, Osama Bin Laden, and al Qaeda to launch large-scale bombing attacks against the United States by utilizing the sophisticated delivery mechanism of powerful suicide truck bombs.”

These are pretty big claims, particularly for a ruling coming out at the Federal level. So I did some digging to see what led the judge to come to this conclusion. First, the reason the case to came to trial in the first place. The entirety of the several cases under this one ruling are admitted under the Foreign Sovereign Immunties Act (FISA).

The FSIA provides that “foreign states” – including their “political subdivisions” and “agencies or instrumentalities”– shall be immune from the jurisdiction of U.S. courts unless one of the exceptions to immunity set forth in the statute applies. …

These exceptions include, inter alia, certain claims based on commercial activities, expropriation of  property, and tortious or terrorist acts by foreign sovereign entities

Under the FY 2008 NDAA, the FSIA amended to allow for non-US citizens who are employed by the US government to bring suit against foreign entities described above in US courts. In this instance,  five suits were brought against the Republic of Sudan, and one against the Islamic Republic of Iran. Both governments were served and rejected the subpoena, resulting in defaults being logged by the courts.

This is all perfectly admissible under US law, and it is in fact an important clarification of the exemptions under FSIA. Where trouble begins is in the methodology used by the plaintiffs’ lawyers to convince the judge of Iran’s culpability.

The majority of the testimony on the side of the plaintiffs in regard to Iran is provided by one man, an “expert witness on the state sponsorship of terrorism, and specifically Iran, Hezbollah and al-Qaeda”, Dr. Matthew Levitt. Dr. Levitt serves as the Director of The Washington Institute for Near East Policy‘s Stein Program on Counterterrorism and Intelligence. WINEP was founded in 1985 by the American Israel Public Affairs Committee, better known as AIPAC. Dr. Levitt testified as follows as quoted in the opinion:

“Hassan al-Turabi, the head of the National Islamic Front, which ruled Sudan at the time, was keen not only on instituting Islamic sharia law in Sudan at home, but in making the Sudan a place from which worldwide Islamic revolution could flow.” To that end, “Hassan al-Turabi hosted numerous meetings, some large summits with radical extremist groups, including one, for example, in April 1991. Groups like HAMAS and Palestinian Islamic Jihad, Egyptian Islamic Jihad, al Qaeda, Sudanese radicals, Iranians, Lebanese Hezbollah were all invited and

Dr. Levitt went on to testify the following in regard to Iranian links to Hezbollah, which would require Iranian government approval of any collaboration with AQ:

The first is again the getting in bed with al Qaeda. After al Qaeda had issued not one but two fatwas, religious edicts, in ’92 and ’96, announcing its intent to target the West, it was a dangerous proposition. As I mentioned earlier, Iranian leaders have
their own version of rationality, but they are rational actors. And that is something that I believe had to be approved, again, so there would be reasonable or plausible deniability. Overcoming this deep mistrust between the most radical Salafi jihadi Sunnis, who, as we saw in the context of the aftermath of the war in Iraq, are sometimes all too eager to kill Shia in particular, and for the Shia on the other side to overcome their historical animosity towards these radical Sunnis, is no small feat. And I think it is only because of their shared interest at that point, in the 1990s and the immediate — to target U.S. interests, that they were able to decide to overcome this animosity and mistrust. And I think it’s quite clear, because it was for the express purpose of targeting the United States, it shouldn’t surprise then that the type of training they received was specifically of the type used in the East Africa embassy bombings. They expressed interest in, we know they received at least videos and manuals about, blowing up large buildings.

Counterterrorism expert Evan Kohlmann also took the stand on Iran, but spoke specifically of Hezbollah’s connection to the Iranian government, not then making the connection between Hezbollah and al-Qaeda. This is the primary difference in the two’s presentations, with Mr. Kohlmann’s statement as quoted in the opinion being a completely accepted premise by analysts across the board.

Here’s the deal. I have no doubt of Dr. Levitt’s credentials, and I’m sure his work in the field is exemplary. But for the DC District Court to base the major finding of a ruling around the testimony of one expert, particularly one who works for a group with a known viewpoint that they are not hesitant to express, is highly questionable and troubling in my mind. The other evidence provided in the finding of fact deals with Hezbollah and Iran’s ties, such as that by Mr. Kohlmann, but only Dr. Levitt’s testimony draws the direct link between Hezbollah and AQ and thus Iran and AQ.

Had anyone else been on the stand and questioned directly on Hezbollah and AQ’s ties, I’m not sure that the same conclusions would have been drawn by the judge, especially in a case that finds another state, one that is under particular pressure lately and for whom the war drums have been beating, guilty of being responsible for the deaths of Americans and those under American protection. The direct link drawn by Judge John Bates is specious at best and all on the back of one mind. No matter though. This is one more arrow in the quiver of folks aiming for war against Iran.

[EDIT: After having it be pointed out by Andrew Exum, I realized that it was incorrect to state that the only testimony on the Iranian case was provided by Dr. Levitt, as Mr. Kohlmann also gave a statement. This is my fault, I missed that paragraph. The piece has been edited to reflect this, but the conclusion still remains.]