Is military intervention justified if Syria uses chemical weapons? Je ne crois pas…

I read in the press that, according to French President François Hollande, the use of chemical weapons by Syria would be ‘a legitimate justification for military intervention’. Am I missing something here? The only case where the use of WMDs (or any other weapon) would legitimate an intervention against Syria would be if Syria would be using them against the interveners, who could then invoke self-defence. Or if the Security Council adopts a resolution under Chapter VII of the UN Charter authorising a military intervention in reaction to the use of WMDs by Syria against its own population (perhaps this is the situation Hollande had in mind). After all, according to para. 139 of the 2005 World Summit Outcome Document, states are prepared to exercise their responsibility to protect populations from their own governments only ‘through the Security Council, in accordance with the Charter, including Chapter VII’, and not unilaterally.

The use of chemical weapons, and of WMDs in general, is a violation of jus in bello, and not, per se, of jus ad bellum, which does not differentiate between types of weapons. Unless, of course, one argues that Hollande’s statement, which follows similar statements by the UK and the US, is a manifestation of a new opinio juris  of the international community which might eventually lead to the formation of a further exception to the prohibition of the use of force under customary international law. But, in my opinion, this conclusion seems still unjustified.


Proposal by Hossain Mousavian

I saw this article by David Ignatius today. In it, he reports on a conversation he had with Hossain Mousavian, about whom I posted earlier. In this conversation, Mousavian reportedly made an intriguing suggestion for a diplomatic resolution to the crisis over Iran’s nuclear program. Here’s how Ignatius reports it:

An interesting bridging proposal comes from Seyed Hossein Mousavian, a former Iranian negotiator who’s now a visiting fellow at Princeton University. He told me this week that in addition to capping enrichment at 5 percent, Iran might agree to a “zero stockpile” of this low-enriched fuel. A joint committee with the P5+1 would assess Iran’s domestic needs, and any enriched uranium would either be converted immediately to the needed fuel rods or panels, or it would be exported.

In exchange, Mousavian argues, the P5+1 would recognize Iran’s right to enrich uranium and would gradually lift sanctions.

This intriguing proposal lacks official Iranian support, but it would address Israel’s biggest concern and would surely interest American officials. Mousavian also notes Iran’s willingness to allow much wider inspections by the International Atomic Energy Agency into what are known as “possible military dimensions” of the Iranian nuclear program. This transparency proposal would allow the IAEA to monitor any possible breakout, but U.S. officials caution that if the Iranians decided to go for a bomb they could simply expel the IAEA inspectors and make the dash.

 

This proposal includes some elements that I hadn’t heard of before, in particular the “zero stockpile” idea. Obviously, implementation of this idea would be complicated and certainly imperfect. But in principle it does seem to address some of the core concerns voiced by the P5+1, about Iran’s potential ability to “break out” into nuclear weapons manufacture.

It seems to me that this proposal essentially meets all of the reasonable interests and expressed desires of both sides. Under the proposal, Iran would get to keep its nuclear fuel cycle capability, and have its legal right to do so recognized. The P5+1 would get pretty much the maximum reasonable accountability and transparency of Iran’s fissile material stores, with a cap on enrichment at 5%, and the export out of Iran of all uranium enriched higher than 5%, as well as all excess 5% enriched uranium.  I think this is exactly the kind of proposal that should be seen as meeting the reasonable interests and requirements of both sides, and that provides a realistic and face-saving way for both sides to claim victory through compromise.

I think that if P5+1 negotiators are smart, they will see this kind of proposal as the best solution they are realistically likely to get to this impasse, and that they will embrace it as providing a way out of the crisis that avoids war.

I’m well aware that Israel, under its current leadership, is unlikely to be satisfied with such a resolution. But that should not stop the P5+1 from being reasonable and pragmatic, and therefore supporting such a resolution, in the interests of international peace and security.


The UN ATT Conference –a Disappointing but Worthwhile Exercise

The July 2012 diplomatic conference on the Arms Trade Treaty (ATT) in which more than 150 states participated, ended without adopting an ATT but with a Draft ATT submitted by the president of the Conference. An overwhelming majority of states, including arms exporters, importers, and victims of armed violence, were all eager to make a final and legally binding deal, while a few countries such as Syria and Iran were opposed to it. No major arms producer/exporter states officially objected the Draft, although the US (supported by Russia and China) requested more time to think about it. As a result, the negotiations have been suspended for an unspecified period. Opponents of the process celebrated this, although many states, humanitarian organizations and the UN were deeply disappointed.

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The ATT – A Predictable Failure

The Arms Trade Treaty (ATT) negotiations that took place at the UN this July ended as a considerable diplomatic failure, – not because the draft Treaty did not command consensus, but because consensus was blocked by the wrong government. Having insisted on rules of procedure that required consensus for adoption of the Treaty (as opposed to the normal procedure for Treaty adoption laid down in the Vienna Convention on the Law of Treaties), key States had calculated that a compromise text would be blocked by those strongly opposed to the ATT, such as Syria, Iran, Venezuela, North Korea or others. Such a “consensus minus a few very negative States” draft Treaty text could then have been forwarded to the General Assembly and adopted there, as the case was with the CTBT[1] after it was blocked in the CD[2] in 1996.

On the very last day of the Diplomatic Conference (27 July), however, the US delegation took the floor and stated that they were not in a position to support adoption of the draft Treaty text of 26 July. This took the Conference by surprise, as this draft was exactly the foreseen “consensus minus a few very negative states” text. The US had been heavily involved in working out the tough compromises, not least regarding the two most difficult issues: 1) should ammunition be included in the Treaty’s scope, and 2) should there be an obligation not to authorize an arms export if the arms would be used for serious violations of human rights law or international humanitarian law. The 26 July draft Treaty text solved both of these contentious issues in a manner that appeared to be acceptable to both the somewhat restrictive States as well as the more progressive ones, along with civil society and the ICRC. When the US backed out of the compromise they had been a key party to, the draft Treaty’s status suddenly went from being a text that could have been forwarded to this fall’s General Assembly as is, to being just a possible basis for further negotiations.

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Welcoming Dr. Gro Nystuen to Arms Control Law!

I’d like to welcome a new member of the Arms Control Law blogging team, Dr. Gro Nystuen.  Dr. Nystuen has a wealth of experience in lawmaking and legal interpretation of sources relating particularly to conventional weapons.  She will add significantly to the pool of expertise here at Arms Control Law, and it’s a great pleasure to have her on board! 

Her first post will follow shortly, and will consist of some thoughts on the recently concluded U.N. ATT conference. 

Please see a summary of her impressive bio below:

Dr. Gro Nystuen is Senior Partner at the International Law and Policy Institute (ILPI) in Oslo where she works on public international law issues, including the ILPI Nuclear Weapons Project (http://nwp.ilpi.org/), humanitarian law, law of armed conflict and disarmament.  She took part in the diplomatic processes on the Mine Ban Convention in 1996-1997 and the Convention on Cluster Munitions in 2007-2008, negotiations pertaining to the CCW, as well as the Arms Trade Treaty negotiations 2010 – 2012, on behalf of the Norwegian Ministry for Foreign Affairs. Dr. Nystuen works part time as Associate Professor at the University of Oslo and at the Defense Staff University College in Oslo. She worked in the Norwegian Ministry for Foreign Affairs from 1991 to 2005. She published her doctoral dissertation on the Dayton Peace Agreement, and has published a number of articles on international law, in areas such as international humanitarian law, human rights law, international terrorism, corporate social responsibility and jus ad bellum issues.  More information on her experience and publications can be found at http://www.ilpi.org/?p=32&sid=8


ACW Post and FP Article by Jeffrey Lewis

I wanted to recommend to readers Jeffrey Lewis’s most recent post over at Arms Control Wonk, which also links to a very good article he recently wrote at Foreign Policy.  Both address U.S. intelligence assessments of Iran’s nuclear program, and in them Jeffrey provides some very interesting analysis.  What stood out to me particularly is some analysis Jeffrey provides about the historical record of the consequences of counterproliferation-oriented preemptive military strikes.  Here’s a block quote from Jeffrey’s post:

The decision to conduct an airstrike or not is an interesting policy choice.  (Keeping in mind I have a very high burden of presumption against  the use of force in general.) The benefit of a strike is an induced pause in the program — more or less what we have now though imposed through force.  The question is whether an airstrike creates more delay than the current indecision of the Supreme Leader.  So far, I think, the best answer has been no — the NIE believes Iran is reluctant to force the issue by attempting to weaponize its capabilities.

This framing of the policy problem assumes that, once attacked, the Supreme Leader would very likely order a crash program to acquire a nuclear deterrent, a fear that stems directly from Saddam’s reaction to Israel’s destruction of the Osirak reactor. One of the dumbest things I have seen written in a long time is this:

“A similar argument was used by critics of the prospective Israeli strike against Iraq’s nuclear reactor back in 1981 (the critics included then Labor Party head Shimon Peres, now Israel’s president, who reportedly is a major critic of the prospective attack on Iran). But that successful strike actually put paid to Saddam Hussein’s nuclear weapons program, which was never resurrected.”

Iraq did reconstitute its nuclear program as we discovered after the 1991 Gulf War.  There is no room for disagreement on this factual point. Whether the Iraqis were competent enough to ever figure it out, they successfully hid an enrichment program for a decade, which probably accounts in no small part for Iran’s late 1980s interest in enrichment technology.

Moreover, the Iraqi “nuclear weapons program” — in the sense of a formal commitment by Saddam to seek nuclear weapons — is best understood a response to the strike on Osirak.  All of the historical evidence that I have seen –largely in the form of memoirs by Iraqi scientists like Madhi Obeidi, Imad Khadduri and Jafar Dhia Jafar — suggests Saddam had yet to decide to seek nuclear weapons until the humiliation of the strike by Israel.  One can suspect he would have gotten around to it eventually, but as it happened the best evidence is that the airstrike was the catalyst for the Iraqi nuclear weapons effort, which then proceeded undetected for nearly a decade.

This observation is in perfect harmony with the conclusions of Malfrid Braut-Hegghammer’s recent International Security article entitled “Revisiting Osirak: Preventive Attacks and Nuclear Proliferation Risks

I think that both Jeffrey’s and Malfrid’s conclusions about the likely negative proliferation consequences of counterproliferation-oriented preemptive military strikes, based in the example of Osirak, are part of a growing consensus to this effect. And this consensus should weigh heavily in the ‘negative’ column of any state’s decisionmaking calculus of whether to engage in such a strike against another state.


UNSCR 1929 – The Slayer of Commercial Contracts?

I’ve seen a couple of news stories lately about a lawsuit brought by Iran against Russia, for alleged breach by Russia of a contract to supply S-300 surface-to-air missiles to Iran (see stories here, here and here). More precisely, this would I assume be a claim for breach initiated by Iran under the contract, which apparently provides for arbitration of disputes at the ICC Court of Arbitration in Geneva. 

 Apparently, the $800 million contract was signed in 2007, but Russian President Medvedev signed a decree terminating the contract in September 2010.  Russia’s stated reason for the termination was that fulfilling the contract would be in violation of U.N. Security Council Resolution 1929, adopted in June of 2010.

 So, in April 2011 Iran instituted the claim for breach at the ICC.  Announcing the action, ­Iranian Ambassador in Russia Seyed Mahmoud-Reza Sajjadi reportedly said:

 “We consider the S-300 complex as not falling under the UN Security Council resolution, therefore we are suing Russia to give it this legal cause . . . ”

 This case interested me because it is a rare instance of one state canceling an already existing commercial contract with another state on the basis of a U.N. Security Council Resolution. And, of course, it interested me because it involved a source of arms control law emanating from the U.N. Security Council.

 Thinking about this case brought back to my mind another, similar case, involving the same U.N. Security Council Resolution. In this case, Pakistan and Iran entered into a commercial contract whereunder Pakistan would supply, and Iran would purchase, natural gas. The contract was reportedly signed on May 24, 2009 (see stories here, here, here and here).

Under the contract, both states reportedly agreed to lay pipelines up to their respective borders by 2014 to carry the gas from Pakistan to Iran. The contract reportedly provided that in the event one side was unable to carry out its obligations of building the pipeline on time, it would be required to pay $2 million per day to the other state as penalty.

 Its been a bit more difficult for me to work out the timeline on this case – and I welcome any comments that clarify it – but from what I can gather, after the passage of UNSC Resolution 1929, the government of Pakistan decided it would not go through with the pipeline/gas contract with Iran, citing to Resolution 1929 as a legal prohibition of the deal.  I haven’t found any indication that this case was ever submitted to a judicial or arbitral forum for dispute settlement. However, it has definitely become a sore spot in Iranian-Pakistani diplomatic relations.

 Thinking about these two cases, then – both the Russia-Iran missile contract, and the Pakistan-Iran gas contract – there are some obvious similarities.  Both are commercial contracts entered into before the passage of UNSC Resolution 1929. In both cases, the state contracting with Iran subsequently argued that they could not legally fulfill their end of the contract because of prohibitive provisions in UNSCR 1929.  In both cases, Iran disputed that legal analysis.

 I’ll just go ahead and add one more similarity to that list. In both cases, the legal conclusions advanced by the states contracting with Iran, and cited as the reason for their effective unilateral termination of the commercial contract, were COMPLETE CRAP. And I’m confident that in both cases, the state making that argument knew that it was complete crap.

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