Report on the CWC and Regulation of “Wide Area” Riot Control Agent Delivery Mechanisms

The University of Bradford Non-Lethal Weapons Research Project and the Omega Research Foundation have produced a report written by Michael Crowley entitled Drawing the Line: Regulation of “Wide Area” Riot Control Agent Delivery Mechanisms under the Chemical Weapons Convention (Apr. 2013).

The report notes (1) the CWC’s prohibition against use of riot control agents (RCAs) as a method of warfare and against the development of RCA munitions for use in armed conflict; and (2) the permissibility under the CWC of the use of RCAs for law enforcement purposes, including domestic riot control. However, the report identifies questions about the “regulation of large caliber munitions and delivery systems that can be utlised for dispersing significant amounts of RCA over wide areas and/or over extended distances[,]” specifically whether such wide-area RCA munitions and delivery systems qualify as appropriate for law enforcement use of RCAs under the CWC. It discusses potential problems with these wide-area mechanisms, including their use in armed conflict, proliferation to non-state actors, and use for law enforcement purposes.

The report recommends that the OPCW:

– Develop a process for determining prohibited means of RCA delivery;
– Develop a clarifactory document detailing prohibited RCA means of delivery;
– Strengthen existing RCA declaration and reporting measures, and explore the feasibility and utility of introducing appropriate monitoring and verification measures.

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Rouhani’s Nuclear Thoughts in 2006

Now that Rouhani is the President of Iran, we’re all trying to figure out exactly who he is and what his views are on the nuclear issue, and that makes his prior writing and speeches on the subject quite important. Here is a very insightful piece he wrote for Time magazine in 2006. I really encourage you to read the whole thing. I find it very thoughtful and well expressed. I think you can see his legal training coming through in his thought process – which of course I like. Here’s an excerpt:

Iran is not accused of having the bomb. There are no indications that Iran has a nuclear weapon program. If Iran were to have a weapons program, the alarmists in the U.S. and Israel have reportedly said that it would take at least another seven to ten years for Iran to make the bomb. What is often cited by American officials as 20 years of Iranian secret nuclear military program turned out to be, as declared by the IAEA, nothing more than the failure to declare, in a timely manner, some experiments and receiving some material and equipment. Such failures to declare are not uncommon among the NPT members. Remedial steps are envisioned in the Safeguards Agreement to address them, and Iran has done so. Moreover, it was no secret that we were in the European, Russian and Asian markets to purchase enrichment technology in the late ’80s and ’90s. Therefore, an Iranian secret weapon program is only hype, and the sense of urgency about Iran’s nuclear program is rather tendentious. The world should not allow itself to be dragged into another conflict on false pretenses in this region again.

Iran is intent on producing nuclear fuel domestically for reasons both historic and long-term economic. The U.S. and some Europeans argue that they cannot trust Iran’s intentions. They argue that they cannot accept Iran’s promise to remain committed to its treaty obligation once it gains the capability to enrich uranium for fuel production. They ask Iran to give up its right under the NPT, and instead accept their promise to supply it with nuclear fuel. This is illogical and crudely self-serving: I do not trust you, even though what you are doing is legal and can be verified to remain legal, but you must trust me when I promise to do that which I have no obligation to do and cannot be enforced. It is this simple and this unfair. There must be a better way out of this than to top this travesty with threatening Iran in the Security Council with possible sanctions and perhaps even use of force. This path can potentially cause harm and suffering at differing degrees to all parties to the conflict.


Rouhani Discusses Potential Nuclear Deal with the West

In his first press conference to address the nuclear issue, newly elected Iranian President Hassan Rouhani made some important statements about how he intends to approach nuclear diplomacy with the West, and he intriguingly mentioned the specifics of a deal he says he worked out with French President Chirac in 2005 when Rouhani was Iran’s chief nuclear negotiator:

Rouhani proposed that a deal he discussed in 2005 with then French President Jacques Chirac, which he said was rejected by the UK and the US, could be the model going forward.

Hossein Mousavian, who served as a member of the Rouhani negotiating team, said the Chirac idea that Rouhani referenced involved the highest level of transparency of Iran’s nuclear program in exchange for Iran having its rights under the nuclear Non Proliferation Treaty (NPT) recognized.

We agreed with Chirac that: first, the EU-3 would respect the legitimate rights of Iran for peaceful nuclear technology under the NPT, including enrichment,” Mousavian told Al-Monitor Monday. “Second, Iran would accept the [International Atomic Energy Agency] IAEA’s definition for objective guarantees that the Iranian nuclear program would remain peaceful and would not divert toward weaponization in the future.

It means that Iran would respect the maximum level of transparency that internationally exists,” Mousavian, a contributing writer to Al-Monitor, further explained. “In return, the P5+1 would not discriminate against Iran as a member of the NPT. It would respect Iran’s rights under the NPT like other members.

I think that the basic contours of this deal as he describes it, are what everyone is basically coming around to accepting as the inevitable essentials of a potential diplomatic accord between the West and Iran. Its alot like the Israeli-Palestinian dispute in that sense – i.e. everyone basically knows what has to happen here for both sides to agree and for the issue to finally be settled. Now its just down to having leaders on both sides who are willing to do what has to be done to solve the dipute peacefully. Rouhani seems to be going out of his way to try and tell the world that he wants to be that leader on the Iranian side. Now if he can only find a good faith partner in President Obama.


New US-Russia Cooperative Threat Reduction Agreement

The United States and Russia have reached a new agreement on bilateral efforts to dismantle and secure WMD in Russia. This accord replaces the now-expired agreement that supported the long-running Cooperative Threat Reduction Program, otherwise known as the Nunn-Lugar program. On June 17, the White House released a fact sheet on the new agreement, which reads:

On June 14, the United States and the Russian Federation signed a new bilateral framework on threat reduction that reinforces our longstanding partnership on nonproliferation. This new framework builds upon the success of the 1992 Agreement between the United States of America and the Russian Federation Concerning the Safe and Secure Transportation, Storage and Destruction of Weapons and the Prevention of Weapons Proliferation, commonly known as the Nunn-Lugar Cooperative Threat Reduction (CTR) Umbrella Agreement that expires today.

As long-time partners with a mutual interest in promoting nuclear security, the United States and the Russian Federation have successfully partnered on a broad range of activities designed to prevent the spread of weapons of mass destruction (WMD) by securing and eliminating WMD-related materials and technology, and engaging relevant expertise. Joint U.S. and Russian nuclear security activities will be conducted under the Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation (MNEPR) and a related bilateral Protocol. This new bilateral framework authorizes the United States and the Russian Federation to work in several areas of nonproliferation collaboration, including protecting, controlling, and accounting for nuclear materials.

The signing of the new bilateral framework demonstrates that the United States and the Russian Federation remain committed to nuclear security and other mutual nonproliferation objectives.

Global Security Newswire has two stories on the new agreement from June 17 and June 18, which included the statement that “[w]hat exactly U.S. nonproliferation programs . . . will be able to do in Russia under the new agreement remains unclear[.]”


The Legality of Arming Opposition Groups and the Arms Trade Treaty: Implications for Syria like cases

The ATT was adopted on the 2nd of April 2013. It was adopted by an overwhelming majority vote in the UN GA (154-3-23). It was opened for signature on the 3rd of June and as of 17 June it has been signed by 72 countries.  It is most likely, but not certainly, that its entry into force will happen very soon, given the strong support it has enjoyed from States and others.

This is an important development for arms control law in particular and for international law and the international community in general. Secretary-General Ban Ki-moon said when the ATT was adopted that:

This is a victory for the world’s people. The ATT will make it more difficult for deadly weapons to be diverted into the illicit market and it will help to keep warlords, pirates, terrorists, criminals and their like from acquiring deadly arms. It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.

Indeed, the ATT expressly prohibits supplying weapons in violation of UN Security Council arms embargoes (Art 6[1]), such as the one imposed on Syria by Resolution 2083 (2012). It also prohibits weapon transactions if the weapons will be used to committee the core international crimes, genocide, grave breaches of humanitarian law and crimes against humanity (Art. 6 [3]).  It also bans violating the 2001 Firearms Protocol which supplements the UN Transnational Organised Crime 2000 and other similar treaty obligations (Art. 6[2]). These are express prohibitions under the ATT.

However, as per Article 7 (1) of the Treaty states will be required to:

assess the potential that the conventional arms or items:  (a) would contribute to or undermine peace and security;  (b) could be used to:  (i) commit or facilitate a serious violation of international humanitarian law;  (ii) commit or facilitate a serious violation of international human rights law; (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or  (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

If a state finds that ‘an overriding risk of any of the negative consequences’ to the aforementioned norms is existent it must not authorise any transfer of conventional weapons (Art 7 [3]). The difference between the first category (as codified under Art 6) and the second one as enshrined in  Article 7 is that while the former deals with expressly banned transfers the latter is mainly about the duty to assess potential risks (for more details see Z. Yihdego, ATT.., 23 June, 2012).

In either category there is no express reference to the ban on arms supplies to armed opposition groups such as the Free Syrian Army, although it may be argued that terrorists and transnational organised criminal groups as non-state-actors (NSAs) have been indirectly included in the legal duties of states as shown in Article 7 (1) [iii] & [iv]. This may be strengthened by the fact that the Preamble of the instrument considered the following as one of the principles.

Non-intervention in matters which are essentially within the domestic jurisdiction of any State in accordance with Article 2 (7) of the Charter of the United Nations. 

Such recognition of the principle has not been included as a standard to ban arms transactions with NSAs, however.  Moreover, article 7 of the ATT targets the criminal acts without distinguishing whether the potential perpetrator is a state or a non-state-actor.  What seems to be clear, however, the ATT was not meant to include any general ban on arming NSAs.  This poses the question whether this was a deliberate omission or an issue which was compromised to ensure broader participation. 

In the last decade or so there has been a fierce debate over the legality and legitimacy of prohibiting arms supplies to armed groups, especially those who fight tyranny and cruel regimes of their own .  The first argument is that under exceptional circumstances supplying weapons to such movements must be permitted; this can be justified on the basis of the obligation to prevent and protect populations from serious crimes such as genocide. In the recent past some countries have also recognised some opposition groups as legitimate or legal representatives of a people (see also Stefan Talmon).  The USA has been arguing in favour of such a position stressing that all such actors are not necessarily bad guys. The opposing, and probably more convening view, however, considers arms supplies to such actors unhelpful and also illegal under international law; the latter argument does not appear to include National Liberation Movements (NLMs) who fight colonisation, foreign occupation or racial rule (as the ICJ hinted in Nicaragua).

It is not entirely clear whether the adoption of the ATT evidences a defeat or a success of either argument.  The majority of states were in support of including the ban on arms supplies to armed opposition groups.  But as having important players on board was crucial to the successes of the ATT framework, those states who were champions codifying the non-intervention rule driven ban on arming opposition groups (as confirmed by the ICJ in the Nicaragua Case as a solid international rule) appear to opt for making a compromise on such an omission.  It may be said that it was a deliberate omission from the ATT for purposes of arming the Syrian opposition like movements and the underlying exceptional circumstances such as countering the alleged use of chemical weapons by the Syrian Government.  The fact that not only the USA but also some European countries are vowing to arm Syrian rebels may also be used to strengthen this argument.

Based upon the law of state responsibility and the emerging notion of responsibility to protect, however, the international community or a group of interested states ought to target the regime who commit crimes against its own people, through appropriate and lawful method, most preferably through the UN, without violating the core rules of international law, which includes the duty not to intervene into internal affairs of a state.  The act of recognition of rebels is also a pure political act (Stefan Talmon, CJIL, 2013) the result of which impedes doing business with such actors as same as representatives of sovereign states.   

We also have dozens of legal and political instruments on conventional weapons such as the ECOWAS Convention on Small Arms and Light Weapons 2006, the EU Code of Conduct on Arms Exports 1998 and the [EU] Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment 2009, amongst others, that clearly prohibit the supply of armaments to NSAs.  This suggests that the omission at issue from the ATT is most likely to be an act of compromise rather than a deliberate challenge to the well established customary rule of non-intervention as applied to arming armed groups within a sovereign state (see  Pierre-Emmanuel Dupont interesting and detailed article on the subject at https://armscontrollaw.com/2013/05/27/the-supply-of-arms-to-opposition-groups-in-syria-and-international-law/). This may be the reason why majority of states including European countries are either against arming Syrian rebels or are not openly advocating the supply of lethal armaments to the rebels.  

Despite the absence of an express duty not to supply weapons to non-state-actors within a state in a situation of civil war in the ATT 2013, case law, treaty law and scholarly opinion appears to be sufficiently clear about this; supplying with weapons to armed opposition groups is contrary to international law. Practically, moreover, arming rebels in various conflicts is contributing to destabilizing communities, countries and regions as seen in Iraq, Libya and Afghanistan. It can therefore be concluded that while the omission from the ATT is unfortunate, the legal duty of states to refrain from arming rebels of a third state is strongly embodied in the international legal order, irrespective of its exclusion or inclusion in that Treaty.

 


ATT Commentary

I ran across this today. It appears to be a thorough commentary on the ATT published by the Geneva Academy of International Humanitarian Law and Human Rights. I just thought I’d pass it along for reference.


Mark Fitzpatrick on the Influence of Western Sanctions on the Iranian Election

As the news of the Iranian election’s results came in on Saturday, Mark Fitzpatrick of IISS sent out a Tweet saying:

My conclusion: Iranians are fed up with Sanctions and with the leaders who couldn’t stop them.

This was my first exposure to an argument that has since been making the rounds on the web, championed by nonproliferation types with close ties to Washington DC, like Fitzpatrick. The basic idea of this argument is that the election of Hassan Rouhani, a relative moderate, in Iran is confirmation of the effectiveness of Western economic sanctions in influencing Iran’s nuclear policy.

I find this argument particularly analytically odious for several reasons. First, it attempts to simplify what I think is a very complex and nuanced dynamic between the Western sanctions and both the Iranian public and Iranian officials’ reactions to them.  Second, I think at an essential level it is incorrect.  I would cite as evidence for this conclusion a Gallup poll that was conducted only four months ago in Iran.  This poll found that, while the Western-imposed sanctions have indeed had a very serious effect upon the living conditions and overall financial well being of ordinary Iranians, they overwhelmingly blame the U.S., and not their own leaders, for the sanctions.  Furthermore, according to the poll, the Iranian public still overall supports their country’s nuclear program and aspirations.  Here’s an excerpt from the summary of results:

Despite Effects of Sanctions, Many Iranians Support Nuclear Program

The majority of Iranians are so far seemingly willing to pay the high price of sanctions. Sixty-three percent say that Iran should continue to develop its nuclear program, even given the scale of sanctions imposed on their country because of it. In December, one in two Iranians supported their country developing its own nuclear power capabilities for nonmilitary uses.

Iranians say Iran should continue to develop nuclear power.gif

Iranians Hold U.S. Most Responsible for Sanctions

Iranians are most likely to hold the U.S. (47%) responsible for the sanctions against Iran. One in 10 Iranians says their own government is most to blame for sanctions.

U.S. to blame for sanctions against Iran.gif

Implications

Iranians report feeling the effect of sanctions, but still support their country’s efforts to increase its nuclear capabilities. This may indicate that sanctions alone are not having the intended effect of persuading Iranian residents and country leaders to change their stance on the level of international oversight of their nuclear program. Iran, as one of the most populous nations in a region undergoing monumental shifts, will remain a key country in the balance of power for the Middle East. Thus, the United States’, Russia’s, and Europe’s relationship with the Iranian people remains a matter of strategic interest. The effect of sanctions on Iranians’ livelihoods and the blame they place on the U.S. will continue to be a major challenge for the U.S. in Iran and in neighboring countries such as Iraq. Recent reports that Tehran and Washington might enter into direct talks were short-lived when Iran’s supreme leader made a statement strongly rejecting them. With Iran preparing for elections later this year, a turning point is needed to get leaders on both sides out of the current stalemate on the country’s nuclear program.

The results of this poll would seem to directly contradict Fitzpatrick’s conclusions regarding both the nature of the influence of Western sanctions on the Iranian election, and the locus of blame which ordinary Iranians perceive for their suffering under the sanctions.

I would instead recommend Seyed Hossain Mousavian’s analysis of the effect of Western sanctions on Iran and its nuclear policy here.

And with regard to the implications of the election, I would recommend Barbara Slavin’s analysis here, and Paul Pillar’s analysis and excellent policy recommendations here.