Colonel Liron Libman, Former Head of the Israeli IDF International Law Department, Responds to my Post

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give my response to it below:

Dear Mr. Joyner. I thought this is a blog about LEGAL issues relevant to arms control. This post does not contribute anything to the legal analysis, and seems more like another chapter of the “save Iran” campaign you seem to engage in persistently on this platform.
The first chapter was titled “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?” and, at least, had some fair legal arguments, although I had two comments on this discussion:
First, the whole discussion was planted in Jus Ad bellum, presuming that an attack on Iranian nuclear facilities will be the beginning of an armed conflict. This is overlooking the possibility that Iran and Israel are already in war. Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to the Israeli city of Beer Sheva, causing a shutdown of all schools in the city (See this report: http://www.ynetnews.com/articles/0,7340,L-4297621,00.html). And this is not a singular incident. Earlier this month, Iran’s northern proxy, the Hezbollah, sent a drone infiltrating Israeli territory. I need only quote Lebanese ex PM, Mr. Siniora (not a great fan of Israel) that said: “Sending the drone over Israel is not a Lebanese decision, however the move was made at an Iranian behest. Such act needs techniques only available in Iran”. Mr. Siniora further expressed the concern that such an act implicates Lebanon in possible military operations and Israeli reactions.
(The Daily Star, Lebanon News: http://www.dailystar.com.lb/News/Local-News/2012/Oct-14/191353-siniora-hezbollah-drone-sent-over-israel-at-irans-behest.ashx#ixzz2Aa1suZtw )
It is interesting to note that Prof. Dinstein, in his book “War, Aggression and Self-Defence”, discusses the 1981 Israeli raid on a nuclear reactor under construction in Iraq. In his opinion, the attack is justifiable as a continuation of the state of war that had started as a result of the Iraqi invasion of Israel in 1948 and its subsequent pulling out without signing an armistice or a peace treaty. Of course, the situation between Israel and Iran is not identical, but perhaps a similar argument can be made.
Secondly, your comment in the discussion following this post that “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank” has no base in the facts, at least when it comes to Israel. Israel never denied the applicability of Jus In Bello to its armed conflict with Palestinian armed groups, ongoing since 2000. Just check the official Israeli government position paper “The Operation in Gaza – factual and legal aspects”, part III (available at: http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf ). Indeed, Israel did deny the applicability of the IV Geneva Convention in the territories it occupied from Egypt and Jordan in 1967, but this had nothing to do with the rules on the conduct of hostilities.
The next chapter in this “save Iran” crusade was “The Myth of Surgical Strikes on Iran’s Nuclear Facilities”. I will presume, for the purpose of this discussion that the figures quoted of possible Iranian civilian casualties because of a strike are realistic, although they do not seem to come from impartial sources. However, one cannot draw such unequivocal conclusions about illegality of an attack in Jus in Bello just based on potential civilian casualties. The rule of proportionality is about the RELATION between civilian casualties and damage to civilian objects and the military advantage of the attack. Only when the civilian toll is excessive in relation to the military advantage, is the attack illegal. You have not considered the anticipated military advantage Israel or the US might see in such an attack. Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world” (available at: http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2011/wp513_eng_iran-1512.pdf ). And this is considered to be an Iranian “pragmatist” and “moderate” leader.
Just to clarify, I do not necessary think that a military strike on Iran’s military nuclear program, either by the US or by Israel is a good idea. In any case, it can only be a last resort. However, if your legal position is that Israel cannot act before an Iranian nuclear warhead is about to be launched against it in the name of holy Jihad, I suggest you check again your fundamental understanding of law. As the former president of the Israeli supreme court, Aharon Barak, once said : “A Constitution is not a prescription for national suicide” (“The Judge in a Democracy”, 2006, Princeton University press, p. 291). I think it is true for law in general and for international law, too.

Dear Colonel Libman, I cannot help noting the profound irony of the chief international lawyer for Israel’s military – someone who is paid to convince the world that whatever Israel does is legal – accusing me of political bias in my legal analysis.

I certainly won’t apologize for bringing attention to Steve Walt’s article. Unlike you, I don’t see it as a part of a “save Iran” campaign, but as a part of a “let’s think about this rationally and not go to war” campaign. I recommend its reading, and its thinking, to you.

With regard to your legal arguments, I note that you use the non-technical term “state of war” when making your jus ad bellum arguments. I suspect this is because you know that trying to claim that there is an actual armed conflict – the only relevant legal term – in existence between Israel and Iran, would be unpersuasive according to the jus in bello and the relevant facts. There is no armed conflict in existence currently between Israel and Iran, and to claim that there is is just grasping at straws in an unpersuasive attempt to do your job – convince us that whatever Israel does is lawful.  Lawyers for the USG, particularly during the bad old Bush years, have similarly tried to argue that the US is in some kind of eternal state of war with a method of violence – terrorism – and with anyone (names to be continually added) that the USG thinks employs that method of violence against the US or its allies. That argument of a continuing legal war on terrorism, which is of course intended to legally justify anything the USG wants to do anywhere in the world that has any connection to terrorism, no matter how strained the connection – has been similarly unpersuasive to international legal scholars.

When I made the statement that you quote about Israel denying the applicability of the jus in bello to strikes in the West Bank and Gaza, I was indeed referring to Israel’s repeated erroneous denial that Geneva Convention IV applies to the West Bank and Gaza, and its continued argument that these are not occupied territories under the jus in bello. I understand the distinction you are making with regard to conduct of hostilities, and I concede that to be more correct I should have replaced the word “strikes” in that sentence with “occupation,” so that the sentence would have read “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military occupation in Gaza and in the West Bank.” The overall point I was making in that sentence, in context, which was clarified by the hypothetical I spelled out in the next paragraph, is that, like the US, Israel has gone to great lengths whenever possible to try to limit its exposure to the law of the Geneva Conventions, and might be expected to do so again in the context of a strike against Iran. Israel’s repeated denials of the applicability of GC IV to the West Bank and Gaza, and denial that Israel has the legal duties of an occupying power – arguments that have been thoroughly discredited by the International Court of Justice and the vast majority of academic commentators – are certainly proof of these efforts.

Now with regard to your comments about the anticipated military advantage of attacking Iranian nuclear facilities, and the potential for this military advantage to outweigh, under proportionality analysis, the very significant civilian casualties that would be caused by the release of dangerous forces from these attacks, which as I and Marco noted in the post and comments, is the subject of both treaty and customary international law establishing an exceptionally high standard of care for the attacking force.

The question of military necessity is of course a complicated one, as is the question of actually applying the proportionality test as between military necessity and civilian protection. I tell my students that it’s kind of like comparing apples and anvils. As it happens, we are very honored here at Alabama right now to have President Aharon Barak visiting with us and teaching a short course. And I had the privilege today of having lunch with him. I mentioned our exchange to him, and we talked about questions surrounding this issue, including whether military necessity in IHL is essentially a subjective determination on the part of military officials, or alternatively whether it is essentially an objective determination that can be reviewed by courts of law and in other legal fora.  And even if it is an essentially objective determination, to what extent should the law defer to military officials’ determination of military necessity?  I found the conversation very enlightening. His view was that military necessity is essentially an objective determination that can be reviewed by courts and judges, and he said that as a judge he didn’t give any deference to military assessments of military necessity over others’ assessments of military necessity. And he said further – and I found this point particularly analytically helpful – that governments bear the burden of proof of military necessity. I think this principle has very useful application to IHL situations, and places the burden for establishing military necessity on the shoulders of the attacking military.

There is of course a long history of disconnect between Israeli military and civilian officials on the one hand, and the broader international legal community on the other, on questions of international humanitarian law, including the question of military necessity and proportionality balancing.

We have seen this disconnect play out so many times in the judgments of the International Court of Justice; in the assessments of investigating groups sanctioned by international organizations including the United Nations; and in the assessments of respected non-governmental organizations.  Israel will claim that military actions in the West Bank, Gaza, or Lebanon are justified by military necessity; but international jurists and other international investigators will subsequently assess these claims to be legally incorrect, in light of countervailing legal considerations of human rights, as protected by international humanitarian law, and embedded in the IHL principles of proportionality and discrimination. Examples of such occasions include the ICJ Wall Advisory Opinion, the Goldstone Report, the van Kappen Report on Qana, and Amnesty International’s reports on the Gaza Blockade and on the 2006 Lebanon campaign.

So often in these cases, Israeli officials’ subjective assessment of military necessity and its proportional relation to anticipated civilian casualties, simply doesn’t convince international jurists and investigators from other countries, who feel they are able to look at the facts and the law in a more objective light, and apply the law objectively to produce a correct result.

Now, who is “right” in the context of these disagreements between Israeli officials and the international community is a complicated question, and one that I have thought a lot about. I was going to say something on this subject here, but I think I’ll have to save it for another day.  I’ll rather limit myself here to saying that I see this same phenomenon happening now in the case of threatened Israeli attacks on Iran’s nuclear facilities.

From a military advantage perspective, attacking Iran’s nuclear facilities – including conversion, enrichment and fuel fabrication facilities – appears to most in the international legal community to offer no appreciable military advantage in itself. There is simply no real evidence that Iran is using these facilities for military purposes. This has been established over and over again by Western intelligence agencies. The idea that Iran might, at some indeterminate time in the future, take the decision to use these facilities as part of a military nuclear program, appears to be a suspicion in the minds of Israeli officials that has no real basis or support in the observed behavior of Iran (not just in the incendiary words of some of its leaders), or in any actual evidence regarding Iran’s nuclear program. With the burden of proof resting upon its shoulders for demonstrating military necessity, these facts will make satisfying this burden impossible for Israeli officials. I know very well that you will disagree with the assessment I have just made. But that is precisely my point. There is a longstanding, and continuing disconnect at work.

And even if one does look ahead to some possible military use of these nuclear facilities in the future to find a military necessity for attacking them now, it is well understood that destroying Iran’s known nuclear facilities now would only set Iran’s nuclear program, whatever its character, back a few years – it would not permanently destroy Iran’s program. And in terms of other factors that should also be influentially weighed in calculating military advantage, there is also an increasing awareness that an attack on Iran’s nuclear facilities would actually likely work as a catalyst to Iran’s development and manufacture of a nuclear weapon, and to its withdrawal from the NPT.

All of these factors, taken together, appear to most in international legal community to produce no military advantage from an attack on Iran’s nuclear facilities. Indeed quite the opposite. I think this is how the international legal community overwhelmingly views the prospect of such an attack, and how international jurists and investigators would assess the military advantage factor in a proportionality analysis under international humanitarian law.  You can see, then, how this assessment of military necessity wouldn’t even come close to the IHL standard necessary to legally justify such an attack on targets that would release dangerous forces, likely resulting in thousands of civilian deaths.  Thus, I am quite confident that the ICJ and other international jurists and investigators would concur with my and Marco’s view that such attacks would be unlawful.

Again, I know that this is not how you would view and assess the military advantage of such an attack, as you’ve said. And therein lies the disconnect that is my overall point here. And again, I’m sure we could go back and forth for hours about who, as between Israeli officials and international lawyers outside of Israel, is right in their assessments of the relevant criteria, and their proportionality with each other.

But I do think it is important to emphasize that the determinations and legal analysis under IHL must remain objectively applied by the international legal community.  If not, and if every attacking state is to be given deference in their subjective determinations of military necessity and the proportionality and discrimination tests, IHL would be rendered completely moot and incapable of fulfilling its primary purpose, which is to restrain the methods, means, and choice of targets of militaries during armed conflict, in order to impose a modicum of civility on this most uncivilized of human activities.

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Walt on Why Coercing Iran Into Submission Isnt Wise

I just read this brilliant piece by Steve Walt over at FP.  I could not agree with this analysis more, and I think it shows the kind of insight, wisdom and practicality that I so wish we would see more of coming out in US policy.  Steve Walt for SecState in Obama II!

I hope Steve and FP don’t mind, but I’m going to copy the whole thing here. It’s relatively short and I think it would be hard to post just an exerpt.

Getting Iran to say ‘uncle’ might not be smart

By: Stephen Walt

What if our current policy towards Iran actually works, and Tehran gives in to every one of our demands? You’d think that would be a crowning diplomatic success, wouldn’t you? Think again. In fact, a one-sided triumph over Iran might solve little, because a deal dictated by Washington probably wouldn’t last.

Given where U.S. policy is today, there are two paths to a resolution of the Iranian nuclear issue. Both are inherently coercive. The first path is the one we are currently on: The United States and its allies keep ratcheting up economic sanctions until the Iranian economy collapses, accompanied by a fair amount of human suffering and untold deaths due to economic hardship. At that point, the clerical regime either says “uncle” or gets overthrown. In either case, whoever is in charge in Iran subsequently agrees to abandon all nuclear enrichment, get rid of all their current stockpile of enriched uranium, and dismantle all their centrifuges, with compliance to be verified by the United States and the IAEA.

In this scenario, a tightening vise of economic pressure will convince Iran to do what the late Muammar Qaddafi did in Libya in 2003 and abandon any interest in a nuclear capability. Unfortunately for us, Tehran has probably noticed what happened to him, which makes it less likely that they’d ever surrender in quite the same way.

The second path is the military option: The United States attacks Iran and destroys as much of its nuclear infrastructure as it can find. We also manage to convince Iran that we’ll keep coming back to repeat the job if they try to rebuild. In response, the clerical regime ignores the popular outrage that our attack would provoke and agrees to remain a non-nuclear power in perpetuity.

Let’s ignore for the moment the fact that U.S. intelligence services still believe that Iran is not actively seeking nuclear weapons at all, a view that our allies in Great Britain apparently share. Let’s also leave aside the question of whether either of these two paths is likely to succeed. Instead, let’s suppose one of them did, and Iran capitulated to our current demands. Would that be a good thing? I’m not so sure.

The problem with these two paths to a non-nuclear Iran is that each will leave a lot of Iranians really pissed off and resentful. Even if they were forced to grant all our demands, they will have done so under extreme duress, either because the U.S.-led coalition had twisted their arms out of their sockets with “crippling sanctions” or because the Great Satan had launched an unprovoked military attack. In the unlikely event that either policy convinced Iran’s leaders to completely abandon nuclear enrichment — a goal that the government, key opposition figures, and much of the Iranian public have long supported — that concession will have been screwed out of them.

The obvious danger, of course, is that this outcome will provide ammunition for Iranian nationalists and hardliners, and strengthen the hands of those who favor Iran have an overt nuclear weapons capability. They will ask why India and Pakistan can have nuclear weapons but Iran cannot. They will point out that other Non-Proliferation Treaty signatories are permitted to have enrichment capabilities but Iran is barred. They will remind the world and their fellow citizens that Japan has vast quantities of plutonium and is probably only a few months from a bomb if it ever wanted one, while Iran is treated as an international leper. And they will surely wonder why Israel gets U.S. protection and unconditional aid even though it is not signed the NPT and has a large nuclear weapons arsenal of its own.

As a result, there will be plenty of Iranians eager to abandon any agreement they might reach with us, just as soon as they thought they could get away with it. In other words, an agreement that is reached solely through coercion will only endure as long as the same level of coercive pressure remains credible. At best, such an agreement would last only as long as the balance of power and resolve continued to favor us. The more one-sided the deal, in short, the more likely Iran is to renege and the more the U.S. and Israel will have to watch it like hawks for any sign of slippage. What better way to ensure that relations never improve?

By contrast, a nuclear deal that gave something to both sides and promised both sides a significant stream of future benefits would give both actors an incentive to stick to the terms. It would also tend to silence the hawks in both camps who push for hardline solutions (i.e., those Americans who favor military force and those Iranians who might favor actually getting a bomb). The problem here, as my colleague Matt Bunn reminded me yesterday, is that the current level of mistrust makes it hard for either side to convince the other that it will actually deliver the stream of benefits that will have to be part of the deal.

The late negotiation expert Roger Fisher famously recommended giving opponents “yes-sable” propositions: If you want a deal, you have to offer something that the opponent might actually want to accept. In the same vein, Chinese strategic sage Sun Tzu advised “building a golden bridge” for your enemies to retreat across.

Translation: If we want a lasting nuclear deal with Iran, it can’t be completely one-sided. Paradoxically, we don’t want to strong-arm Iran into accepting a deal they hate, but which they are taking because we’ve left them no choice. A completely one-sided deal might be easier to sell here at home, but that sort of deal is also less likely to endure. In order to last, there has to be something in it for them, both in terms of tangible benefits but also in terms of acknowledging Iranian interests and national pride. Otherwise, the deal won’t stick and we’ll be back to the current situation of threat-mongering, suspicion, and strategic distraction. That might be an outcome that a few neo-cons want, but hardly anyone else.

We are often warned about the dangers of appeasement and the “lessons” of Munich. But we often forget the equally important lesson of Versailles: when victors impose a harsh and one-sided settlement on a country — even if it deserves it — it sometimes backfires. Assuming we eventually get serious about negotiating with Tehran, we will need to look for a deal that satisfies our core interests. But we won’t get everything we might want, and if we want it to stick, Iran will have to believe that it got something out of it too.


U.K. Attorney General Gives Formal Secret Advice that an Attack on Iran Would Violate International Law

Yousaf Butt apprised me of this today, for which I am grateful. Its a story in the Washington post here that itself cites a Guardian story here.  Cribbing now from the Guardian story:

 

The Guardian has been told that US diplomats have also lobbied for the use of British bases in Cyprus, and for permission to fly from US bases on Ascension Island in the Atlantic and Diego Garcia in the Indian Ocean, both of which are British territories.

The US approaches are part of contingency planning over the nuclear standoff with Tehran, but British ministers have so far reacted coolly. They have pointed US officials to legal advice drafted by the attorney general’s office which has been circulated to Downing Street, the Foreign Office and the Ministry of Defence.

This makes clear that Iran, which has consistently denied it has plans to develop a nuclear weapon, does not currently represent “a clear and present threat”. Providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law, it states.

“The UK would be in breach of international law if it facilitated what amounted to a pre-emptive strike on Iran,” said a senior Whitehall source. “It is explicit. The government has been using this to push back against the Americans.”

Sources said the US had yet to make a formal request to the British government, and that they did not believe an acceleration towards conflict was imminent or more likely. The discussions so far had been to scope out the British position, they said.

“But I think the US has been surprised that ministers have been reluctant to provide assurances about this kind of upfront assistance,” said one source. “They’d expect resistance from senior Liberal Democrats, but it’s Tories as well. That has come as a bit of a surprise.”

 

This is a big deal, that the U.K. Attorney General has issued this formal advice, and that on the basis of it the U.K. has denied the U.S. access to its military bases for purposes of a strike on Iran. I certainly agree with the conclusion to which Dominic Grieve and his team have come in this advice – which is a refreshing turn historically, following the infamous legal advice given in 2003 by then U.K. Attorney General Lord Goldsmith, legally justifying the invasion of Iraq (although I remember well that the rumors floating around U.K. international legal academia – of which I was a member at the time – were that then LSE Professor, now ICJ Judge, Christopher Greenwood had essentially ghost written that opinion for Lord Goldsmith. I have no idea if that’s true, but it made sense to me when I read the opinion at the time, because it was clearly written by an international legal expert, which Goldsmith was not).

I have recently written on the legality of a potential military strike against Iran’s nuclear facilities by either Israel or the U.S. here and here.  As I said, when I have analyzed this question, my conclusion has been in agreement with that of the U.K. Attorney General.  It’s hard to judge the analysis in the AG’s opinion, because it hasn’t been made public. I’m confident, however, that it rests on sounder legal foundations than the reasoning alluded to in the Guardian article, i.e. that Iran doesnt currently represent a “clear and present threat.”  That’s not an international legal standard, nor even a legal term of art.  It sounds alot like a Tom Clancy book that was made into a pretty good Harrison Ford movie, but that’s beside the point. But again, I trust that if/when we actually get to read the AG’s opinion, it will be much more solidly grounded in international law.


The Myth of Surgical Strikes on Iran’s Nuclear Facilities

I just saw what I think is an important, practical contribution to the debate on preemptive military strikes against Iran’s nuclear facilities. The article is at Time.com and is entitled “The Myth of Surgical Strikes on Iran,” but it’s specifically about the potential practical implications/consequences of an Israeli airstrike on Iran’s nuclear facilities. I really encourage readers to take a look at it. It gives some very specific analysis of the likely human casualties resulting from airstrikes on Iran’s nuclear facilities. The numbers are staggering.

I don’t consider myself to be an expert on international humanitarian law – the law governing armed conflict – although I’m trying to add it to my analytical competencies. But it seems to me that there are pretty solid legal grounds on which to base a conclusion that, because of the locations and the inherently dangerous attributes of these targets, along with their essentially civilian infrastructure character, any strike against Iran’s current nuclear facilities, no matter the reasons for the strike or even arguendo the character of the facility as a legitimate military objective, would be unlawful under international humanitarian law.  This is something that I would welcome comments on from my colleagues who have more expertise on IHL issues – Dieter Fleck, Marco Roscini and Gro Nystuen come quickly to mind.

Though not a specialist in this area myself, even I know that the 1949 Geneva Conventions and their Additional Protocols of 1977 forbid the targeting of civilian objects during armed conflict. This includes objects of civilian national infrastructure indispensable to the survival of the civilian population, such as civilian power generating stations.  Specifically, Additional Protocol I provides in Article 56 that a number of different works and installations containing dangerous forces, including explicitly  “nuclear electrical generating stations”:

shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

Article 56 goes on to provide that this special protection from attack shall cease:

for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support

Doesn’t this proibition fit this set of facts pretty precisely? I know that not all of the facilities in question in Iran are nuclear electric power generating stations themselves, but they are all part of the same industrial complex that is necessary to have nuclear electric power generation – i.e. they are all necessary parts of the nuclear fuel cycle – and so I would argue that they are all essentially part of the same nuclear power generation “station” in that sense.  And certainly the underlying rationale perfectly applies regarding the “release of dangerous forces and consequent severe losses among the civilian population” from the targeting of these facilities.  The official commentary to AP I is even more specific about the constitutive elements of such stations, the attack of which would cause the relevant dangerous forces, explicitly listing among them “stocks of radioactive products . . . and in this way releasing lethal radiation.”  Each of the nuclear facilities in Iran that would be targeted would have on their premises such stocks of radioactive products, and as the new report makes clear, attacks on this facilities would very likely release lethal radiation affecting civilians in surrounding areas.  I would therefore think that the targeting prohibitions in AP I would cover all of these nuclear facilities. But again, I’d be very interested in what my colleagues think about this.

I know there may be some complications to this analysis, arising from the fact that Israel is not a party to AP I, and neither is Iran. However, the ICRC study of customary international humanitarian law includes the essentials of the law in AP I Article 56, in its Rule 42.

My sense overall is that the likelihood of an Israeli attack on Iran’s nuclear facilities in the near term is decreasing, for a number of reasons. I certainly welcome this. But there’s still enough media chatter on the idea to make this new report an important contribution.


Great New Post by Peter Jenkins

Peter Jenkins has posted a great new piece over at Lobelog:   http://www.lobelog.com/back-to-basics/

For those who don’t know, Ambassador Jenkins was a British career diplomat for 33 years. He served in Vienna (twice), Washington, Paris, Brasilia and Geneva, specializing in global economic and security issues. His last assignment (2001-06) was that of UK Ambassador to the IAEA and UN (Vienna).

I highly recommend this piece to readers’ attention. In addition to agreeing with every word of this piece, I think Peter is making a great contribution here by really getting down to some fundamentals behind all the surface legal and policy stuff that tend to comprise the primary discussion points on Iran. The question of the perception of Iran in the West as an enemy is a very interesting one indeed and, Peter’s right, lies at the very heart of all the problems. I have never understood it myself. I personally think it’s an idea that has been actively sold in the U.S. to a, let’s face it, largely ignorant and therefore pretty gullible body politic when it comes to foreign policy, by people who want Iran to be perceived as an enemy for their own political reasons. These people have led a successful campaign to demonize Iran and paint it as a threat to the U.S., by reducing complex issues to soundbites and black and white categorizations, like Iran’s inclusion in a fabled “axis of evil.”  Another major contributing factor is the success of pro-Israeli political groups operating in the U.S., who have used the history and narrative of Israel, and the sympathies and money of many in the U.S., to their great advantage in influencing U.S. politics to essentially outsource U.S. policy in the ME to Israel. A part of this latter phenomenon that might not be easily understandable outside of the U.S., but which is very real and significant nonetheless, is the role that fundamentalist Christianity plays in American politics on this issue. There are some huge demographics, particularly in the southern U.S. where I live, but elsewhere as well, whose version of Christianity teaches them that ancient Biblical prophecies can be facilitated in their coming to pass by the West’s active support of the modern state of Israel. This belief provides significant political and financial support to the previously mentioned diproportionate pro-Israel bias in U.S. politics. One anecdote on this point. The other day I was chatting with a friend – a kind, simple local woman whom I like very much. The subject of my work on Iran came up. Absolutely guilelessly, she admitted that she knew very little of the ME and the particulars of the conflicts between Israel and its neighbors, but said that her understanding of the Bible let her know that we should not abandon Israel.  I’m sure readers will see my point in reciting this. Here is someone who admittedly knows nothing about the facts of any of the disputes in the region, and therefore has no basis in objective fact for determining that Iran is an enemy of the U.S., but who nevertheless has a strongly held religious view that America should take Israel’s side in these disputes. This feeling, replicated millions of times at least, at an almost instinctual level by certain large demographics in the U.S., along with the other factors mentioned above, in my opinion explains much of the success that has been achieved in selling the characterization of Iran as an enemy in this country.


Did Stuxnet breach the UN Charter’s ‘Principles’?

On 28 September, the Iranian Foreign Affairs Minister Ali Akbar Salehi addressed the UN Security Council at the High Level Meeting on Countering Nuclear Terrorism (the text of the speech can be read here). Among other things, in the speech Salehi criticized cyber attacks against Iranian nuclear facilities and qualified them as ‘manifestation of nuclear terrorism and consequently a grave violation of the principles of UN Charter and international law’ (the emphasis is mine).  This might be the first time that Iran has taken an official and explicit position with regard to the (il)legality of Stuxnet, at least in an international forum (on the ‘conspiracy of silence’ that surrounded Stuxnet, see David Fidler’s interesting article in Privacy Interests, July/August 2011).

The question however is, which UN Charter principles were allegedly breached by Stuxnet? Assuming that Salehi used the word ‘principles’ in a technical sense, the Charter’s principles are famously listed in Article 2. Principles 5, 6 and 7 are not relevant in the present case. Principle 2 merely refers to the duty to comply in good faith with the obligations arising from the Charter. On the other hand, Principle 1 reaffirms the sovereign equality of states, a corollary of which is the prohibition of intervention in internal affairs of other states. According to the International Court of Justice, the prohibition of intervention is ‘part and parcel of international law’ (Nicaragua v. United States (Merits), 1986, para. 202). The 1970 UN General Assembly’s Declaration on Friendly Relations condemns ‘armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements’, and also emphasizes  that ‘[n]o State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind’ (the emphasis is mine). The language is broad enough to cover intervention by means of cyber attacks when they have a coercive purpose, i.e. when they aim at coercing the target state into doing or not doing something that the state is otherwise legally entitled to do. But if the (non-forcible) intervention is a reaction against something that the target state was not legally entitled to do, i.e. a breach of international law, then it could amount to a lawful countermeasure aimed at persuading the wrongdoing state to stop the breach and provide reparation. From this perspective, the legality of Stuxnet would therefore depend on: 1) whether Iran’s nuclear programme is an internationally wrongful act in the form of a violation of NPT obligations; 2) whether the state(s) behind Stuxnet (if any) were ‘injured’ by Iran’s breach or were otherwise entitled to adopt countermeasures in relation to it under the law of state responsibility (see Arts. 42, 48 and 54 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts); 3) whether Stuxnet amounted to a ‘use of force’ (countermeasures cannot affect the prohibition of the use of force: Art. 50 (1) of the ILC Articles); 4) whether non-proliferation law is a special regime that has its own enforcement mechanisms (see Sahib Singh’s chapter in my and Dan’s book).

The third condition leads me to discuss the other two relevant principles in Article 2 of the UN Charter that might determine the illegality of Stuxnet. Principles 3 and 4 are two sides of the same coin and affirm the obligation to settle international disputes peacefully and not to resort to armed force in international relations. Whether Stuxnet is a violation of these two principles depends on whether it can be qualified as a use of ‘armed force’. I have already addressed this issue here, so I will limit myself to refer to the points I make in that article. The recently released draft of the Tallinn Manual on Cyber Warfare (text here) argues, in Rule 11, that ‘[a] cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force’. It then suggests several non-exhaustive factors in order to determine when it is so (pp. 49-50). In the end, the Manual concludes that Stuxnet was a use of force (p. 47) and, at least according to some of the experts that drafted the Manual, even an ‘armed attack’ (p. 56). I do not think that Stuxnet reached the scale and effects threshold of an armed attack, but, as it did cause material damage of some significance, I do not see any problems with qualifying it as a use of force, for the reasons I try to explain in my article. It should also be noted that, unlike the previous case of the principle of non-intervention, the legality of Stuxnet as a use of force would not depend on whether Iran has breached the NPT: under Article 51 of the Charter, force can be used only if an armed attack ‘occurs’. Even if Iran were developing nuclear weapons, it would not have committed an armed attack until it actually uses them.

To sum up. If Stuxnet was a use of force, then the responsible state(s) breached the principles listed in Article 2 (1), (3) and (4) of the UN Charter. As countermeasures cannot consist of a violation of the prohibition of the threat and use of force, Stuxnet would be illegal even if it were established that Iran is in breach of the NPT. If however Stuxnet is not considered a use of force, it would be a breach of the principle of non-intervention, unless it amounts to a lawful countermeasure against Iran’s alleged breach of its non-proliferation obligations.

I would be interested in your thoughts on this.


David Albright Responds to my Post and Shows Why He Epitomizes Everything That’s Wrong with the U.S. Nonproliferation Epistemic Community

I’ve been meaning to post on this general topic for a while now, but David Albright’s comments in response to my recent post about a paper of his just gives me the incentive to finally do it. And it also provides an excellent case study of my point.

First, here’s the first few salvos in my exchange with David Albright, including my original post about his paper. You can see the full thread of comments, in which Albright only gets nastier and shows even more of his true colors, both to me and to another commenter, at the original post here:

 Here’s a new article on the USIP site co-authored by David Albright of ISIS. Wow. Just 100% incorrect in its legal interpretations of the NPT. Why is it that in the nonproliferation area everyone, including engineers, physicists, chemists and general policy wonks, think they can do legal interpretation? You won’t find me writing articles about the technical aspects of missile capabilities, or the internal physics of a warhead core. I know these things are outside of my training and qualification to do. But apparently everyone thinks they can do legal analysis. With respect, I think David should stick to obsessing over satellite pictures of tarps at random military bases in Iran.

http://iranprimer.usip.org/blog/2012/sep/07/nam-countries-hypocritical-iran

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(David’s comment on the post yesterday:)

I have belatedly read Joyner’s rant about our IranPrimer article with amusement and likewise find his chorus of lackeys a pathetic bunch. Now I understand that Joyner’s blogging is supposed to be an ego trip for him and a safe haven for commentators, but Joyner’s blogging is particularly egotistical and, with respect, off-the-wall. In the comments and in Joyner’s writings, I can see the deep ignorance of the NPT. I certainly see no need to revise our analysis and statements in our IranPrimer article. We have consulted with many lawyers who find Joyner’s analysis deeply flawed and agenda driven. These attorneys actually know something about the NPT and safeguards agreements. With regard to writing about legal matters, all our work is informed and reviewed by lawyers with extensive experience in the field of nuclear non-proliferation. I would recommend that Joyner have his work reviewed by competent lawyers. He would need to revise most of his work. But it is a path I would recommend he follow.

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(My response to his comment today:)

What an honor it is to have the great David Albright take time out of his busy media schedule to comment on my blog. Yes, you’re right David, maybe I should have my ten years of legal analysis of the NPT peer reviewed for correctness. Oh wait, that’s right. It has been. In two peer-reviewed university press monographs, which have also then been favorably reviewed by peers in numerous law journals; in peer reviewed journal articles and book chapters I’ve written; and in talks I’ve given at academic events all over. Please feel free to verify all this on my C.V. And BTW David, who has reviewed the work of the lawyers you’ve been consulting? Can you give me the name of even one of them who has published anything that has been truly peer reviewed? Don’t worry, I’ll answer for you. You can’t. Because David, if I was a betting man, I’d bet everything I own that every single lawyer you’ve ever consulted for your studies has at some point worked for the USG, and has had all of the reviews of their work provided to them by other USG lawyers. I’m right, aren’t I? And what else was that you said about my work? Agenda driven? Oh please, David. I think readers who know anything about the work of ISIS will find David Albright, supported by his cadre of USG lawyers, calling my work agenda driven, to be the clearest example of the pot calling the kettle black that they’ve ever heard of. You have got to be kidding. Everybody in this business knows that ISIS is for all practical purposes an agency of the USG, and does everything it can to advance USG policies and interests. And you have the gall to call me agenda driven? David, I’ll put my legal analysis up next to that of your lawyers any day of the week for review by independent international legal scholars from a broad section of countries, and I 100% guarantee you that they will choose mine as being the more correct 9 times out of 10. Oh wait, I forgot, they already have.

 

A colleague in D.C. once said this to me about the U.S. nonproliferation epistemic community – and by this community we both meant the entirety of the various NGOs and think tanks and the few University based centers that focus on nonproliferation studies in the U.S.:  that the community is very D.C. centric, cliquish, incestuous and self-referential, to its detriment. These words have really stuck with me, because I find them to be absolutely true, and both insightful and parsimonious as I’ve observed the community over the years.

I would take it even further and say that in addition, in my opinion, the whole U.S. based nonproliferation experts community – with few exceptions – is systemically biased toward support of USG positions on all the top nonproliferation issues. They maintain an essentially common narrative and set of emphases that is in line with, and that provides support for, the narrative and emphases of the USG, with only the smallest amounts of quibbling around the edges (Albright will talk all day long about his “aluminum tubes” work).  I think that there is in the work of the U.S. nonproliferation epistemic community far too little real, independent evaluation and criticism of USG positions. As I see it, the U.S. nonproliferation community almost acts as a second wave of apologists for U.S. policy, after the USG itself – though it sometimes shrouds this effort in a lot of technical and sometimes academic-looking jargon. But in the end what the U.S. nonproliferation community ABSOLUTELY DOES NOT DO  is serve in the role of an independent, rigorous, analytical check on USG nonproliferation positions, as it could and should do, and as the nongovernmental nonproliferation community in other countries does.

And I think there are some clear reasons for this. Much moreso than in other countries, the members of the U.S. based nonproliferation community tend, with very few exceptions, to

1) have been employed by the USG in the past;

2) want to be employed by the USG in the future;

3) be funded by or hope to be funded by the USG; and/or

4) want to maintain the access and good favor they have with USG officials, for the sake of information and for the sake of invitations to cool events, etc.

Basically what I’m saying is that they are biased towards the positions of the USG, because of their overly close personal and institutional associations with the USG, and because they see their own professional success as being tied to the favor of the USG.

I think there’s also a significant degree of media whorishness at work here as well.  As a colleague once wrote to me while we were discussing this topic: “I think there is another — very important — aspect you may be missing that may even over-ride the ones you mention: aside from taking USG positions, the non-proliferation community likes the high-media profile allotted it, when it loudly tut-tuts 3rd world nuclear arms capacities (or enemies of the west’s nuclear arms capacities), whether or not such capacities are consistent w/ NPT and/or CSAs.  People like being quoted, appearing on TV, and generally feeling important. The Non-proliferation community *loves* the attention and basks in this glow, and though they would *privately* acknowledge that Iran is not so far outside bounds (if at all), they nonetheless pass on statements and innuendo to media indicating the alleged dangers and thus wittingly or not, fan the flames. Others like ISIS simply pass on opinions dressed as expert findings. It just would not do for Non-proliferation types to tell the media: “well, no, Iran’s program is actually not a threat to world peace yet” like the DNI did.”

As this colleague implies in his observation, I also think David Albright is a perfect example of someone that fits all of these descriptions. And it comes through so clearly in his work. In addition to the Iran Primer article I criticized previously, look for example at Albright’s “analysis” in this article. All he really does is make provocative speculations about what “could” be happening at locations in Iran, and what “maybe” Iran will do in the future. And it’s so clear that he’s working on the basis of a set of unproven, but firmly held assumptions about Iran – the same assumptions he had about Iraq, for which his work has been widely discredited – that they have a nuclear weapons program, and he is ginning up all the evidence he can that might support that assumption, speculating about what that evidence may mean, but only in a direction that would tend to support his preexisting assumption. There’s no rigor here in thoroughly considering and evaluating other possible explanations for the same observations – like a real academic or even a real, quality NGO analysis would. Maybe it’s because David has never done PhD level academic work, and so he doesn’t understand what is expected of quality scientific analysis. But this is an assumption-driven piece of provocative speculation that serves only to provide support for the USG’s contentions about Iran’s nuclear program.  That’s just what he infamously did in the lead up to the 2003 Iraq war too.  That’s not rigorous and independent analysis. That’s biased and low quality work, and it’s classic Albright.

I know very well how the D.C. nonproliferation crowd feels about me. Albright’s comments here are just the most recent example. They think my work is pro-Iranian and generally pro-developing country, and anti-U.S.  They say I’m biased and agenda driven. I see myself as being actually independent and objective – i.e. not on the payroll of, or particularly concerned about the favor of, the USG – and willing to say what I genuinely think an independent and rigorous analysis of the applicable legal sources produces. I value my independence and my role as a legal academic more than anything else in my professional life, and I am professionally offended by bad legal argumentation. Especially bad legal arguments that go unanswered.  Now, it would be naïve of me to say that there is no bias in my work. Every human being has sympathies and preferences based on their life experiences and identity, and academics are no exception. We don’t always know when those biases are at work, although sometimes we do. And when we do, I think it’s our job to weed them out, and to try and stay as objective and comprehensive, thorough and rigorous as we can. That’s the only way we can maintain our credibility as being independent and objective authorities in our areas of expertise.

Am I personally sympathetic to or biased towards the policies of the Iranian government? Absolutely not. As I was just saying to a good friend over lunch, if I woke up tomorrow and the people of Iran had overthrown their current leaders and instituted a democratic, liberal, secular government, I would be absolutely thrilled. That’s the best thing that could possibly happen to Iran.  However, do I think that the legal arguments of the current government of Iran deserve a fair and independent and rigorous hearing and analysis by the international community, just as the legal arguments of any other government do? Yes I do, for many reasons, not least of which is the prevention of unnecessary and unjust economic sanctions and possibly war against the Iranian people, and the fairness and perceived legitimacy and relevance of international law. I don’t see anyone else stepping up to make these arguments, and make sure that they are taken seriously in the West, and that’s why I keep doing it.

Am I sympathetic to developing countries’ positions in the nuclear energy area generally? Yes I am. I admit that freely. And it’s because I genuinely think that they are bullied by the West in the nuclear area, as in many other areas, for a whole range of political and economic reasons, and that the legal advisors of Western governments have concocted erroneous legal arguments to give perceived credibility to these policies. I can’t change the policies and the politics they’re based on, but I think there is a real need to lend whatever professional abilities I have to making sure that their legal arguments are made at a high level of competence and sophistication, and are given due consideration by the international community. Again, noone else seems to be doing this in the West, and so I keep doing it.  But I maintain that my legal analysis is independent and essentially objective, and that I follow the proper analysis of a legal source to its most persuasively correct conclusion, no matter what that conclusion is.

I think that the U.S. nonproliferation community, linked so closely as it is to the USG itself, generally takes a negative view of my work for a number of reasons. One of the primary reasons is that they are so used to being able to effectively tell the rest of the world what to think about the NPT regime, and how to interpret the law associated with it, that when someone independent comes along and poses a genuine intellectual challenge to the warped and USG driven legal views of the NPT regime that they’ve been spouting for decades, they genuinely don’t know what to do about it. With the errors and intellectual bankruptcy of their legal arguments laid bare, they make only feeble attempts to defend themselves substantively because, honestly, they don’t have very good substantive arguments to make and they never have. The only argument they have left to make is to argue in desperation that the challenger is biased and agenda driven – which is in the end the ultimate irony, because it’s precisely their own bias and USG-centric agenda that has made their arguments so weak, and has provided the legal errors that the challenger now corrects, to the persuasion of everyone else in the world.

This accusation against me has been made many times, most notably by Norm Wulf in his review of my 2011 book in Arms Control Today (to which I responded here), and now by Albright. Although in Albright’s case, he adds a delightful soupçon of ad hominem attack against me, and some condescending language about my readers, to complete the recipe. Unfortunately, the ad hominem tack does seem to be Albright’s go-to M.O. when he’s challenged about his work. Have a read of this article about Albright, including an exchange that a reporter had with him. Look at how Albright responds to criticism by Scott Ritter and by the reporter. Wow. I have to say that Albright comes across as a pretty nasty piece of work. I’m finding that in my own communications with him as well. At the moment I would say that he’s the nastiest, most uncollegial person I have yet to come across in this business. And that’s saying something.