I mentioned this briefly at the end of my piece yesterday on special inspections, but I wanted to also bring it to the front. Friend of ACL Professor Yousaf Butt has just published an excellent piece on the need for re-setting the US diplomatic approach toward Iran, and the reasons for this need. I fully endorse the legal conclusions in this piece, and the prescription he gives for a path forward. This is sort of a macro-diagnosis of everything that’s been wrong with the West’s and the IAEA’s efforts, both diplomatic and legal, with regard to Iran’s nuclear program over the past decade and more, and how this mishandling of the situation has led us to where we are today. I highly recommend it to readers.
Cyrus Safdari recently brought to my attention an AP article from March 6, in which Joseph MacManus, the US representative to the IAEA, is reported to have made statements indicating “that America might lobby the IAEA board to ask for a special inspection of Parc[h]in, a facility that the agency suspects was used to test explosive triggers for a nuclear weapon, or that the United States would seek an IAEA resolution critical of Tehran.”
There seems to be a lot of misunderstanding, both in official circles as demonstrated by this article, but also within the nonproliferation specialist community, about what exactly IAEA special inspections are, and about their legal character.
In an article from November 2010, Olli Heinonen argued that the IAEA should call for a special inspection in Syria. As he wrote:
Together with official Syrian reluctance to give the agency access to relevant information, persons, equipment, and sites, the resulting situation calls for the use of full inspection rights to ensure that all nuclear material in Syria is for peaceful purposes.
So according to Heinonen’s understanding, a special inspection is a constitutive part of the IAEA’s “full inspection rights” under the comprehensive safeguards agreement.
James Acton, Mark Fitzpatrick, and Pierre Goldschmidt, writing in a 2009 Carnegie Endowment piece, argued that:
It is now time for the IAEA to move beyond such voluntary requests and invoke its most powerful inspection provision, the “special inspection,” to make its requests for access legally binding. If Syria refuses then the Board should make a formal finding of “non-compliance.”
These are all incorrect legal characterizations of the process of special inspections as laid out in the provisions of the IAEA INFCIRC/153 comprehensive safeguards agreement.
Both government officials in the US, and the nonproliferation specialist community (at least, those that aren’t lawyers – which includes Heinonen, Acton, Fitzpatrick, and Goldschmidt), seem to think that IAEA special inspections are a powerful weapon the IAEA has reserved in its quiver, but that it only uses in the most serious of situations, in which desperate measures are needed to bring rogue states to heel. Sort of like a step up in the categorization of a crisis from “code yellow” to “code red.” And that once the IAEA does pull this special inspection weapon out of its quiver, it is exercising its full legal rights to legally compel an inspection of the subject site(s).
But this is a fundamental misunderstanding of the special inspection process as provided for in the CSA. Most commentators, including those quoted above, appear to be confusing IAEA special inspections under the CSA, with a process more akin to a challenge inspection under the Chemical Weapons Convention.
This is what I wrote about the CWC challenge inspection process on pgs. 114-115 of my 2009 book (see Article IX of the CWC):
If, however, a state party feels that it has not been satisfied through this process of interrogatory, it may request that the OPCW conduct a challenge inspection on “any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention.” The state against whom the challenge inspection has been requested is under a basic obligation to cooperate with the challenge inspection by members of the OPCW Technical Secretariat, unless the OPCW Executive Council (composed of 41 state-party members based upon the principle of rotation) determines by a three-fourths vote that the inspection request is “frivolous, abusive, or clearly beyond the scope of [the] convention.”
On the basis of the report generated by the Technical Secretariat, the Executive Council may determine whether non-compliance with the CWC’s terms has occurred and may instruct the offending state party on measures which it must take to remedy such non-compliance. If the measures directed by the Executive Council are not implemented by the offending state, the issue may be referred by the Council to the Conference of the States Parties (the Conference), the principal organ of the OPCW, comprised of a representative of all states parties. In its discretion, the Conference may restrict or suspend the rights of an offending state party under the convention, and may at the extreme in “cases of particular gravity,” refer the matter to the U.N. Security Council.
In the case of a CWC challenge inspection, any state party to the CWC may designate any site within any other state party (subject to limitations on scope and abuse), whether declared or undeclared, for a challenge inspection. And the challenged state is under a legal obligation to allow the OPCW to conduct the inspection. Refusal on the part of the challenged state to allow the inspection constitutes a breach of the CWC.
The special inspection process laid out in the IAEA INFRIC/153 CSA, by contrast, can only be invoked for one of two reasons, as stipulated in CSA Article 73. The first is if a state voluntarily submits a special report to the IAEA. The second is
If the Agency considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.
Before proceeding, let’s be sure we remember what the IAEA’s responsibilities are under the CSA. These are laid out very concisely in Article 2:
The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.
As I’ve explained in detail elsewhere, this means that the IAEA’s mandate is to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.
So, pursuant to the second reason listed in Article 73, if the IAEA thinks that an inspection of an undeclared site, i.e. one that is not subject to routine or ad hoc inspections under the CSA, is necessary for the Agency to verify that no declared fissile material within the safeguarded state has been diverted from peaceful use to military use, the Agency may submit a request to the state that it be allowed to inspect the subject site.
Article 77 of the CSA provides that:
The Agreement should provide that in circumstances which may lead to special inspections for the purposes specified in paragraph 73 above the State and the Agency shall consult forthwith. As a result of such consultations the Agency may make inspections in addition to the routine inspection effort provided for in paragraphs 78—82 below, and may obtain access in agreement with the State to information or locations in addition to the access specified in paragraph 76 above for ad hoc and routine inspections.
So the first step is for the IAEA and the state to consult about the IAEA’s request. If the state agrees to the request, the special inspection proceeds according to terms agreed between the IAEA and the state. However, if the state does not agree to the IAEA’s request, Article 77 provides that:
Any disagreement concerning the need for additional access shall be resolved in accordance with paragraphs 21 and 22; in case action by the State is essential and urgent, paragraph 18 above shall apply.
Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection. These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.
The only way in which the IAEA can circumvent this dispute resolution process, is in a circumstance in which “action by the State is essential and urgent.” In such a circumstance, Article 18 of the CSA applies, which states that:
The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.
So, even in a case in which the IAEA considers is essential and urgent that the safeguarded state permit the special inspection, the IAEA is only empowered to “call upon” the state to do so. It is well understood by international legal scholars that when an international legal instrument provides for an international organization to “call upon” a state or states to do or refrain from doing something, this is not a legally binding command. Rather, it is a non-binding exhortation.
Therefore, in the case of a state being called upon by the IAEA BOG to allow a special inspection to take place, the state’s refusal to allow the requested special inspection would not be an action in noncompliance with the terms of the CSA, or in breach of any other principle of international law. It would simply be the state’s sovereign determination not to provide the IAEA with access additional to that which it is obligated to provide under the terms of the CSA.
Thus, such a refusal would not be grounds per se for the BOG to determine that the state is in noncompliance with the CSA. Therefore Article XII paragraph C of the IAEA Statute, which allows the BOG to report noncompliance with the CSA to the UN Security Council, would not be triggered.
So in the final analysis, unlike challenge inspections under the CWC, special inspections under the IAEA CSA are not legally compulsory. They are a request by the IAEA to the safeguarded state, to allow IAEA inspectors to examine sites not included in the state’s declaration, and therefore not subject to routine and ad hoc inspections. This request may be agreed to, or not agreed to, by the safeguarded state.
Further unlike in the CWC challenge inspection context, refusal by the safeguarded state to allow the special inspection to occur is not, in the IAEA CSA context, a violation of international law, or an act in noncompliance with the CSA.
This is a far cry from the way in which special inspections have been characterized by the non-lawyer nonproliferation specialists quoted above.
So let’s take all this newly corrected understanding about the legal character of special inspections, and apply it to the question of whether the IAEA could perform a special inspection at the Parchin military facility in Iran. It turns out that we don’t have to proceed far into the analysis in order to find the answer.
Remember that special inspections can only be requested for one of two reasons, according to CSA Article 73. First, if there has been a voluntary special report by the safeguarded state. There has not been one in this case. Second, if the IAEA “considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”
Again, this links challenge inspections directly to the responsibilities of the IAEA under the CSA. And what are those responsibilities? As noted above, they are stipulated in Article 2 of the CSA. They are to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.
Parchin is not a site that is at all connected, even in IAEA and third party allegations, with fissile material that should be declared pursuant to Iran’s CSA. The allegations about the site – allegations that are unsubstantiated, and the evidence for which the IAEA will not share with Iran – concern conventional explosives testing and other non-fissile-material-related activities that could be used in developing a nuclear warhead. As I explained in a piece on the JURIST site some time ago, and as is made clear in Article II of the CSA quoted above, the mandate of the IAEA does not extend to investigations and assessments of non-fissile-material-related aspects of a nuclear weapons program (i.e. nuclear warhead development). Thus, since an inspection of the Parchin site definitionally cannot be said to be necessary in order for the IAEA to fulfill its responsibilities under the CSA, a special inspection cannot be requested for the site. This is the effective end of the legal analysis.
However, even if arguendo Parchin was a site at which there was a reasonable basis for concluding that fissile material, subject to declaration to the IAEA, is or has been present, it should be noted that as explained above, the IAEA would only be authorized to ask Iran if it could conduct a special inspection. If Iran denied this request, as it almost certainly would, the IAEA could submit the dispute to arbitration or to the ICJ, but that’s about it in terms of the ability of the IAEA to enforce its wish to conduct a special inspection of the site.
Perhaps, then, it’s no wonder that the IAEA has not opted for this route with Parchin, and at present shows no inclination to do so. Hopefully the US will think better of trying to force the IAEA into a special inspection attempt that will only poison relations with Iran further, and that ultimately won’t yield any useful results in resolving the dispute between Iran and the West over Iran’s nuclear program.
For some MUCH better ideas about how the US SHOULD proceed with regard to Iran’s nuclear program, see Yousaf Butt’s new piece here.
David Koplow of Georgetown University Law Center has just recently published an article entitled Train Wreck: The U.S. Violation of the Chemical Weapons Convention in the Journal of National Security Law & Policy. See the full pdf of the article here. David is a leading arms control law scholar who, in addition to his academic work, has had applied experience through several stints in high level government positions. These positions have included Special Counsel for Arms Control to the General Counsel of the Department of Defense (2009-2011); Deputy General Counsel for International Affairs at the Department of Defense (1997-1999); and Attorney-Advisor and Special Assistant to the Director of the U.S. Arms Control and Disarmament Agency (1978-1981). He’s also a very generous colleague and a nice guy to boot. I haven’t convinced him to come onto ACL as a blogger . . . yet. But he knows he has a standing invitation!
This new piece of David’s begins like this:
The United States is violating a multilateral arms control treaty. Russia is, too. It’s not just some minor accord at stake; it’s the 1993 Chemical Weapons Convention (CWC), the critical, near-universal undertaking to banish the centuries-old scourge of chemical warfare. And it’s not just some trivial misstep; it’s a blatant transgression of one of the treaty’s most fundamental provisions, requiring the timely destruction of the massive inventories of chemical weapons (CW) that the planet’s erstwhile superpowers had laboriously constructed and assiduously maintained throughout the Cold War. And it won’t be a near-miss; each country will stumble years beyond complying with the treaty’s April 29, 2012, final deadline for accomplishing the total dismantling of this noxious ordnance – the United States now figures to eclipse that mandatory mark by at least eleven years.
Now that is how you start a law review article! A great hook for readers. It continues:
How did we get into this mess? How did the United States, the leading exponent of the rule of law and a prime mover in negotiating and implementing the CWC, fall into such conspicuous violation? What can be done at this point to extricate ourselves and the Russians from this grisly political and legal predicament? And what can we do in the future to avoid other similar international law train wrecks? This article parses the problem of noncompliance with the CWC’s dismantling obligations as a case study in the operation (or non-operation) of international law.
As is typical of David’s work, this article is thorough and excellent. I recommend it highly.
Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?Posted: May 7, 2013
Well I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran. For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning. It now resembles a Gordian Knot, and I don’t envy President Obama his choices.
I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.
But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point. Turkey and others have said that these strikes by Israel are a violation of international law. Are they right?
Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law. I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago. Even since then I’d say my views have evolved, and are still evolving.
In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.
That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.
Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict. So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.
One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states. In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.
This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense. Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts. And if there aren’t, then someone definitely should write one!
My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.
Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book. It was, of course, not just a targeted counterproliferation strike. It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.
I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.
We’re all trying to sort through the reports and evidence about the use of chemical weapons, specifically sarin gas, in Syria, allegedly by Syrian government forces. A lot is being said about whether the evidence of use is persuasive, and if so what sort of use it likely was/is – i.e. intentional use by government forces, an accident, etc.
I thought I’d chime in on the question of international law relevant to the use of chemical weapons by Syrian government forces, if that is indeed what has occurred. Chemical weapons possession and use is comprehensively regulated and essentially prohibited by the 1993 Chemical Weapons Convention (CWC), which is a masterwork of treaty drafting and construction. See Chapter 2 in my 2009 book for a thorough explication of the CWC.
The CWC built upon the 1925 Geneva Gas Protocol, which proscribed the use of chemical and biological weapons in war.
Specifically on the use of CW, Additional Protocol I to the 1949 Geneva Conventions, of which Syria is a party, prohibits the use in armed conflict of weapons “of a nature to cause superfluous injury or unnecessary suffering.”
Syria is not a party to the CWC. However, it is beyond doubt that the essential prohibitions contained in the CWC regarding both possession and use of CW, have passed into customary international law, and are thus binding on all states, including Syria. Syria is, though, a party to the 1925 Geneva Gas Protocol, so there is no question that Syria is bound by both conventional and customary international law to not use CW in war. I have seen it written that the 1925 Geneva Protocol “implicitly, does not cover internal or civil conflicts.” I actually don’t think that’s accurate, given later developments in the law of armed conflict, in which the essential rules of the LOAC have been understood to have both passed into customary law, and to apply to both international armed conflicts and non-international armed conflicts.
In a case like Syria, where we are undoubtedly dealing with a non-international armed conflict, the essential rules of the LOAC apply, and this includes the 1925 Geneva Protocol as well as Additional Protocol I to the Geneva Conventions. These conventions and the parallel customary international law attached to them, very clearly prohibit the use of chemical weapons during armed conflict. So I think there is no doubt that, if indeed chemical weapons have been utilized by Syrian government forces, Syria has violated the law of armed conflict.
So where does that take us? Well, as we all know, President Obama has said that the use of CW in Syria would be a “game changer” and would cross a “red line” (a whole new vocabulary we seem to be working with here!). This raises the question, why would the use of CW by the Syrian regime be such a game changer and cross such a red line, when we’ve been watching the regime slaughter its people with conventional weapons for years? This is a good question. I think it’s best answered by Max Fisher in the New York Times:
[T]he reason is about more than just Syria: it’s about every war that comes after, about what kind of warfare the world is willing to allow, about preserving the small but crucial gains we’ve made over the last century in constraining warfare in its most terrible forms.
One of the few positive outcomes of World War I was the Geneva Protocol of 1925, in which world leaders agreed that they would no longer use chemical or biological weapons. They wanted to change not just international law but international norms, both of which were further codified by the 1972 biological weapons convention and the 1993 chemical weapons convention. The idea was that war, sadly, is going to happen. But if we can all agree not to use chemical weapons, warfare will be less terrible.
It’s largely worked: With a few notable exceptions, the taboo against chemical weapons has held up. Even in some of the most vicious conflicts of the past few decades, otherwise ruthless armies and rebels have largely refrained from using chemical weapons. That’s a remarkable achievement and one of the world’s few successes in constraining warfare. Keeping Syrian leader Bashar al-Assad’s regime from breaking the chemical weapons taboo is about more than just what happens in Syria: It’s about maintaining the international norm against chemical warfare, about ensuring that present and future wars will not redeploy the awful chemical weapons that made the First World War so much worse than it would have otherwise been.
I agree with Fisher that this is a norm worth supporting. But from a legal perspective, just because CW are used in a non-international armed conflict like Syria, it doesn’t automatically give third states a legal justification for intervening in the conflict to stop their use. That may sound ridiculous to the non-lawyers out there. But international law still stakes Westphalian sovereignty very seriously, and does not permit interventions into sovereign states’ territory without a legal justification that can form an exception to the U.N. Charter’s broad prohibition on international uses of force in Article 2(4).
Over at Opinio Juris, there are a couple of thoughtful pieces by Julian Ku and Deborah Pearlstein on this subject of on what international legal justification an intervention into Syria by the US could be based. Julian particularly references an earlier post of his, and links to responses to that post by Daniel Bethlehem and Ashley Deeks. I encourage readers to view these posts, as they will give you the contours of the legal debate.
I personally am not very persuaded by either Bethlehem’s or Deeks’ legal justifications for a US intervention, even if CW have been unlawfully used by the Syrian regime. I share Julian’s essential skepticism that such an international use of force would be lawful.
That being said, I’ve thought for some time now that more should be done by the US to support the Syrian opposition forces against the Assad government forces. From supplies of both food and military materiel, to the establishment of no-fly zones enforced by US aircraft, I would support any and all such measures that wouldn’t put US boots on the ground, but would significantly support the opposition in Syria. I know there are a lot of problems with identifying who the opposition is, and a lot of concern about what comes next after Assad falls. But it seems to me that the opposition, even with its fractures, appears to represent the Syrian people much better than the Assad government ever has. And if the regime is now using chemical weapons against the opposition and civilians, I don’t think that the US can sit by any longer and watch this humanitarian tragedy unfold.
As usual, I’m trying to separate what I think the correct analysis of the lex lata is, from what I think should actually be done in the situation. I don’t like fudging the law to support what I think should be done. Here, I think the law is against outside intervention by the US, even if CW have been used. But I don’t think that should be the only factor in considering whether humanity and morality dictate action.