What the UN Secretary-General said at the Monterey Institute of International Studies – And what he did not say
Posted: January 21, 2013 Filed under: Biological, Chemical, Conventional, Missile, Nuclear 3 CommentsOn 18 January, UN Secretary-General Ban Ki-moon delivered a speech on the disarmament and non-proliferation agenda at the Monterey Institute of International Studies. While the Secretary-General highlighted five themes with regard to disarmament and non-proliferation (accountability, the rule of law, partnerships, the role of the UN Security Council, and education), it is what he did not say that I would like to draw your attention to.
Accountability. Ban Ki-moon stresses the special responsibility of the nuclear weapon states in contributing to nuclear disarmament and emphasises that ‘[n]uclear deterrence is not a solution to international peace and stability. It is an obstacle’. This might well be true but flies in the face of reality: the continued reliance of nuclear weapon states’ policies on nuclear deterrence. How those states can be persuaded to change their mind is something the Secretary-General does not address. He also recommends that negotiations are initiated in the Conference on Disarmament to secure legal security assurances for non-nuclear weapon states: while this would certainly be a welcome result at the universal level, it is often forgotten that those assurances are already provided in the protocols attached to the five treaties establishing nuclear weapon-free zones. What the Secretary-General could have also recommended is that the nuclear weapon states that have not done so ratify those protocols as soon as possible.
Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here)
Specific regional issues and the role of the Security Council. Ban Ki-moon singles out the usual suspects, i.e. Iran and North Korea, as his proliferation concerns. He admits that he is deeply concerned about Iran’s nuclear programme and stresses that Iran must comply with relevant Security Council resolutions. It is striking that there is no mention of other proliferators, i.e. India, Pakistan and Israel. True, they are not parties to the NPT and therefore have not violated it, but at the beginning of his speech the Secretary-General had emphatically stated that ‘[t]here are no right hands for wrong weapons’. On the upside, it is welcome to read that the Secretary-General believes that a conference on a zone free of weapons of mass destruction in the Middle East can still be convened in 2013 and that he supports the initiative (more information on the WMDFZ in the Middle East here and here). The Secretary-General does not, however, suggest steps to be taken in order to remove the obstacles that derailed the conference in 2012, in particular Israel’s opposition to the initiative.
Disarmament education. Ban Ki-moon rightly emphasises that funding for disarmament education, training and research is low. The Secretary-General also encourages the academia to include disarmament and non-proliferation issues in their curricula and research agendas. While the contributors to this blog cannot be blamed for not doing their part by researching and publishing on non-proliferation issues, undergraduate or postgraduate courses on non-proliferation law are still rare in universities. Consistently with existing financial resources, this is something that we academics with a non-proliferation expertise perhaps could do more on. If anyone is aware of or teaches university courses on non-proliferation law, why not drop us a line so that we can alert potentially interested students here.
Arms Control Law 
Thank you — yes, I saw the speech on-line. He also mentioned the Iran issue — and, oddly, personalized it.
He said (paraphrase) that Iran has not proved the purely peaceful nature of its program to him.
As if that is some kind of legal requirement! In any case, no dual-use nuclear program is purely peaceful.
Can the Mr. Ban prove the purely peaceful nature of Brazil’s nuclear program?
So, it was an OK-to-maybe-good talk, weakened substantially by his personalization of the Iran issue.
Of course, he may be echoing what that political hack Amano is telling him:
http://www.guardian.co.uk/world/julian-borger-global-security-blog/2010/nov/30/iaea-wikileaks
Thank you for your report and personal comments. However, I fear that by linking the threat of CW use in Syria only to the Responsibility to Protect (R2P) doctrine some important angles to legal consequences for CW use are missed.
Let us assume for the sake of the argument that Ban Ki-moon’s mentioning of ‘dire consequences’ refers to the Syrian leadership rather than to the victims of chemical attacks. I would agree with your view that R2P does not automatically authorise military intervention following CW use by one of the parties to a conflict. However, R2P does call for coercive measures, such as sanctions, if the state fails to protect its citizens from mass atrocities and other international measures based on Chapters VI and VIII of the UN Charter prove futile. Para. 139 of the World Summit document refers to the possibility of invoking Chapter VII on a case-by-case basis, through which the UNSC may call for coercive sanctions or military intervention by the international community.
However, in my mind, ‘dire consequences’ can also refer to possible criminal proceedings against the Syrian leaders if they are apprehended after CW use. The Rome Statute of the International Criminal Court criminalises the use of CW in international wars. The 2010 amendment of article 8 equally considers CW use in an armed conflict not of an international character to be a crime. In that sense, it has followed an earlier reinterpretation of the 1925 Geneva Protocol (after Iraq’s chemical warfare against its own Kurdish population in the 1980s) that the ban on CW and BW use should apply to any armed conflict. This expanded view forms an integral part of the CWC, which bans CW use under any circumstances and even prohibits any preparation for CW use in peace or wartime.
Syria has signed, but not ratified the Rome Statute. Thus the Court would not be able to take on the case of Syria’s use of CW, unless authorised by the UNSC. If such a resolution were forthcoming (and pressure is presently mounting to address the many atrocities already happening), then it would be possible for Ban Ki-moon to activate the UN Secretary-General’s investigative mechanism concerning alleged CW use and the bilateral agreement between the UN and the OPCW, which under the CWC must be able to investigate alleged CW use, to receive technical assistance in such work. While the inspectors might not be able to enter Syria (which is not a party to the CWC), they could collect factual data on the allegations (e.g., from exposed refugees) that then could be submitted to the ICC. (I should note at this point that the UN Secretary-General can activate the investigative mechanism without authorisation from the UNSC. The scenario presented here departs from the R2P logic.)
In addition, there is an emerging legal thought that people who assist in preparations for chemical warfare can be guilty of complicity in genocide or war crimes. On 23 December 2005, the District Court of The Hague sentenced a Dutch supplier of precursor chemicals to Iraq, which were then used to prepare chemical warfare agents for use against the Kurds, to 15 years imprisonment on those grounds. The legal argument, its limitations (only national law thus far) and its possible future development are analysed in a 2007 paper by Tabassi and van der Borght, available at
http://www.haguejusticeportal.net/Docs/HJJ-JJH/Vol_2%281%29/Chemical_Warfare_%20as_genocide.pdf.
On appeal, the accused was sentenced to 17 years in prison in May 2007.
Thank you for your reply. You are of course right that another remedy against the commission of international crimes is resort to international justice. This could also be seen as another way of exercising R2P, especially when it is the Security Council that triggers the ICC mechanism. Whether submitting the situation in Syria to the ICC would speed up or obstacle Assad’s departure is anyone’s guess.
In my post, however, I did not mean that ‘dire consequences’ would only involve the exercise of R2P through forcible measures. I was only emphasising that the Secretary-General missed an opportunity to remind UN member states that they cannot use force unilaterally, even when international crimes are committed. Just the other day, a former US Department of State Legal Advisor suggested that, when the Security Council is inactive, the use of force option is ‘morally, if not legally, justified’ (www.washingtonpost.com/opinions/un-rules-and-syrian-intervention/2013/01/17/4e8661bc-6000-11e2-b05a-605528f6b712_story.html).