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.


Has Code Become Law? The Liberty Implications of NSA Technological Capability

The furor sparked by disclosure of secret U.S. government surveillance programs reminded me of the famous argument about the relationship of liberty and cyberspace—Harvard Professor Lawrence Lessig’s assertion that, in cyberspace, “code is law.” By this, Lessig meant that the software code that makes the Internet and related technologies run empowers and restricts behavior and, thus, regulates activities in cyberspace. Lessig warned that the regulatory effects of code could displace constitutional traditions and threaten political liberty unless deliberative democracy controls the power that software code creates.

The United States is now debating the legality of power the U.S. government claims it possesses in cyberspace—a power that includes collecting daily the records of phone calls made by millions of Americans. Defenders of the surveillance programs argue that this power, and its secret exercise, is necessary to prevent terrorist attacks. However, arguments that covert government activities are vital for national security are not new; they are as old as politics and, in the United States, a traditional source of skepticism in a Republic self-governed by a free people. The argument from necessity has been fountainhead of abuses in the past, but it has never before been the justification for the mass collection of information on the daily communications of millions of Americans not suspected of any wrongdoing, let alone involvement with terrorism. So what explains why we hear this justification now?

What is new is the technological capability of the U.S. government to collect, mine, and use that information in the name of national security. Technological innovation permits the private sector (think Facebook and Google) and the government—and the NSA in particular—to develop data storage and data-mining capabilities that permit the acquisition and analysis of almost unimaginable amounts and kinds of digital information. The fundamental enabler of this unprecedented capability is software code. Here, code is power.

Prior to development of this code-based capability, it was not feasible to collect and analyze records on the daily communications of millions of Americans in a timely or useful manner—making arguments for the national security necessity of doing so pointless. But, now, the U.S. government can undertake mass surveillance and, apparently, produce actionable intelligence from Americans’ local phone calls that thwarts terrorist attacks. Here, code creates a vital national security interest where none existed before.

In the American tradition, the Constitution and the Bill of Rights provide the sword and the shield against government attempts to exercise power against Americans for national security reasons, and opponents of the secret surveillance of Americans’ telephone calls have turned again to this arsenal. However, we have to ask whether the technological capability to undertake surveillance on a scale never before possible has changed interpretations of the law the government used, namely Section 215 of the PATRIOT Act. Many have re-read Section 215 in light of recent disclosures and have been unsettled to learn it justifies the daily collection of data about the communications of law-abiding Americans because the U.S. government is investigating international terrorism.

Are we now interpreting laws, including constitutional principles, differently because we can, with software-enabled technologies, do things that were impossible before and that our history suggests we should resist, especially when coupled with the argument of national security need? If so, is software code defining the law and the scope of liberty?

Just as Americans have often been wary of arguments that the exercise of expansive, secret government power is justified by national security necessity, the unfolding debate in the United States should also interrogate arguments that the government must exercise such power because, now, it can.


Putin on Iran’s Nuclear Program

One doesn’t always think of Russian President Vladimir Putin as being the epitome of good judgment, but I have to say I think he hits just about exactly the right chord in his comments here on Iran’s nuclear program and the surrounding law and diplomacy:

Russia’s Putin Says Iran Nuclear Push is Peaceful

(Reuters) – Russian President Vladimir Putin said on Tuesday he has no doubt that Iran is adhering to international commitments on nuclear non-proliferation but regional and international concerns about Tehran’s nuclear programme could not be ignored.

Putin, whose country is among six world powers seeking to ensure that Iran does not seek to develop nuclear weapons, also said Iranian threats to Israel’s existence were unacceptable.

His remarks appeared aimed to strike a balance between the interests of Iran, on the one hand, and on the other, Israel and global powers seeking to ensure Tehran does not acquire nuclear weapons.

“I have no doubt that Iran is adhering to the rules in this area. Because there is no proof of the opposite,” Putin, whose country is one of six leading those diplomatic efforts, told Russian state-run English-language channel RT.

But he criticised Iran for rejecting a Russian offer to enrich uranium for Tehran’s nuclear programme and took aim at aggressive Iranian rhetoric about Israel, with which Putin has been improving ties in recent years.

“Iran is in a very difficult region and when we hear … from Iran that Israel could be destroyed, I consider that absolutely unacceptable. That does not help,” Putin said.

Putin suggested that Washington was exaggerating dangers posed by Iran, saying “the United States uses Iran to unite Western allies against some real or non-existent threat”.

Putin said that concerns about Iran’s nuclear programme, which Tehran says is purely for peaceful purposes including power generation, must be addressed.

Last week, Russia joined China, the United States, Britain, France and Germany in pressing Iran to cooperate with a stalled investigation by the U.N. nuclear agency into suspected atomic research by the Islamic state.

In a June 5 joint statement intended to signal their unity in the decade-old dispute over Iran’s nuclear programme, the six powers said they were “deeply concerned” about the country’s atomic activities.

(Reporting by Alexei Anishchuk, Writing by Steve Gutterman, Editing by Michael Roddy)

Another account of his comments with some additional quotes is here.


Mark Hibbs on the Leaked IAEA Safeguards Report

So the nuclear nonproliferation blogosphere is lit up with the news of the leak of the 2012 IAEA Safeguards Implementation Report to Bloomberg and to Reuters last week. This also set the Twitterverse on fire, as Mark Hibbs reports in his piece over at Arms Control Wonk, which tries to dampen the hysteria and provide a pro-IAEA spin to the report’s revelations about how much of the IAEA’s budget and time have been spent on the Iran case.

I think in Mark’s apparent haste to explain some of the comments he made that were quoted in the report, he provides some rather superficial and ultimately erroneous analysis of the new report, blaming others in their analysis for “conflat[ing] the difference between compliance and performance evaluation.”

What I think Mark doesn’t see is the much more fundamental and underlying problem, which is that the concept of “compliance” with IAEA safeguards has been mangled and misused by the IAEA in its evaluations and reports for years.

The INFCIRC/153 CSA is very clear about how the system is supposed to work, and what standards the IAEA is supposed to use in their investigations and assessments. As readers of this blog will know, I have discussed the issue of the IAEA’s mandate extensively both here and in a Roundtable over at the Bulletin of the Atomic Scientists.

In brief, it is the IAEA’s now unfortunately institutionalized practice of exceeding its investigation and assessment mandate, that produces all of the problems of inconsistency, politicization, and error in the application of safeguards by the IAEA, including what Hibbs describes as “conflat[ing] the difference between compliance and performance evaluation.”

In the case of Iran in particular, the IAEA has gone beyond its mandate in deciding that it will not determine Iran is in “compliance” with its safeguards obligations, unless the IAEA can assess not only that no declared fissile materials have been diverted from peaceful to civilian use (which is the sole, correct CSA standard), but also that there are no undeclared fissile materials or related facilities in Iran and never have been, and that Iran has never performed any experiments of any kind the knowledge from which could conceivably be employed someday in the development of a nuclear weapon.

This standard is, of course, wildly incorrect, as I have taken pains to demonstrate.

Included in the mix of condemnable acts by Iran that has clearly factored into the IAEA’s unwillingness to declare Iran in compliance with its safeguards agreement according to this erroneous standard, are Iran’s failure to provide design information on the Qom facility, and the Arak facility, in what the IAEA considers a timely manner.

But wait, isn’t this a perfect example of what Hibbs means by conflating the difference between compliance and performance evaluation? As he explains:

In general it can be said with authority (and fully backed up by my historical files) that quite a number of states – and,  importantly, mostly states with significant nuclear programs – have at critical times resisted efforts of the IAEA to require that they provide more information and access . . . . Does this record show that states as a matter of course have resisted taking on additional obligations to the IAEA? Yes. But does this resistance imply that these same states were cheating on their current safeguards obligations? No.

But isn’t that exactly what the IAEA itself is doing, when it takes Iran’s alleged failure to meet a subsidiary arrangement standard on design disclosure into account in making its determination of Iran’s “compliance” with its safeguards obligations?

Instead of looking to the IAEA’s critics as the conflators, Hibbs should look to his good friends at the IAEA itself (the ones who leaked the new report to him), which has been the primary author of the mess that has been made of the concept of “compliance” with IAEA safeguards.

This is why when the people who sent the Tweets Mark refers to, read the excerpts from the new safeguards report and see, for example, its observation that a number of other states failed to make reports of design information of nuclear facilities in accordance with the modified Code 3.1 standard, they think: “Wait a minute, that’s exactly what the IAEA has been criticizing Iran for, and why they say Iran is still noncompliant.  Why aren’t there noncompliance reports on these other states, then?”

Again, it’s the IAEA that has conflated all sorts of erroneous things into their erroneous definition of “compliance,” and that’s what is producing this inconsistency.

And here is the problem of principle involved.  To the extent that the IAEA has gone beyond its clearly delineated and limited textual mandate for investigations and assessment, found in the CSA, and into broader and more subjective standards for investigation and assessment (e.g. like the standard of “no undeclared fissile materials,” and the concept of “cooperation with the Agency”) the Agency has become increasingly susceptible to being co-opted and used for political purposes by powerful states.

This is why, when those same people read in the new safeguards report about how much of the IAEA’s safeguards budget is being spent on Iran, and what proportion of man-hours are being spent on Iran, they naturally think: “Ya know, the IAEA has found no evidence that Iran is doing anything illegal, and yet it keeps chasing ghosts and endless speculations, provided by Western national intelligence agencies, and is never satisfied, even after all this time and all this money being spent.  And now it seems that there are a lot of other countries who are doing the same things the IAEA say are so condemnable about Iran. Something doesn’t add up here.”

And so they start to pay closer attention to reports about how much of the IAEA’s budget is provided by the US and its allies; how closely aligned with the US DG Amano was revealed to be in the WikiLeaks cables; and how much technical assistance the IAEA gets from the US in running its safeguards program. And they think: “Maybe this doesn’t add up because it’s not really about holding Iran to the same legal standards as other countries at all. Maybe this is really just one more way for the US to pursue its political agenda against Iran – whom it considers to be a grave threat to its chief Middle East ally Israel, and to itself – by using its influence over the IAEA to get the Agency to act as its proxy in criticizing Iran’s nuclear program. And maybe the IAEA is never going to be satisfied that Iran is in fact in compliance with its safeguards obligations, because the US doesn’t want it to ever be satisfied, and thereby recognize Iran’s legal justification for its peaceful nuclear program.”

And then they think: “Yeah. Now it does all add up. That really sucks. People should know about this.”


Soltanieh’s Speech to the IAEA Board of Governors

Here is a reported account of the text of Iran’s IAEA delegate Ali-Asghar Soltanieh’s speech to the IAEA Board of Governors on June 5.  I think it makes a great read. He doesn’t pull many punches in laying out what Iran thinks is wrong with the IAEA.  I’ll insert the full text here. Whether you agree with his comments or not, I think you should read them because they are serious allegations, and contain substantive legal critiques of the Agency’s activities:

______________________________________________________________________

At the beginning I express my country’s sincere, sustainable, and definite support of the family of the Non-aligned Movement (NAM) specifically for the statement delivered by H.E. Ambassador Shamaa of Egypt on behalf of the Non-Aligned Movement. at this session. Beyond doubt, resistance in achieving our absolute right for taking advantage of the nuclear energy for peaceful purposes and resistance in confrontation with the pressures, the sanctions, the assassination of our dear nuclear scientists, and threats of military invasion, would serve as obstacles against employing such scenarios in other developing countries, particularly the NAM member countries. We do not permit the unjust policies and approaches of a number of western countries to be dictated to the agency. The Islamic Republic of Iran has paid a high price for not compromising and remaining committed to the articles of its Constitution. We have not given concession in order to be benefitted from our natural right of taking advantage of the nuclear energy for peaceful purposes, including uranium enrichment, which is a clear example of it.’

Mr. Chairman!

Being informed about the decision of your Government about promotion and assumption of an important post in Italy thus leaving Vienna, I have to put on record the satisfaction of my delegation at the professionalism and impartiality chairing the General Conference as well the Board of Governors. I wish you all the best.

Mr. Chairman!

Permit me to commemorate the anniversary of the founder of the Islamic Revolution of Iran, Imam Khomeini (P). I wish to present his viewpoints and ideas about the nuclear weapons here. This short and to the point quotation, uttered about three decades ago shows his clear condemnation against a dangerous weapon which can annihilate the human race:

‘…If they would continue production of huge atomic weapons, etcetera, the world would move towards annihilation and the nations would suffer very gravely.

‘Anyone, and wherever they are, the writers, the intellectuals, the religious thinkers, and the scientists around the globe must make aware the people of this threat so that the masses of people would stand against these two world powers and prevent the proliferation of these weapons…’

Mr. Chairman distinguished Colleagues!

In this meeting I intend to review the status quo of the IAEA and compare with the expectations as envisaged in the Statute. It is essential to remind ourselves, once in a while, the provisions of the Statute in order to prevent diversion from the principles on the basis of which the IAEA was established. In this process of critical review we got to make distinction between the Agency as a whole and the Secretariat. I decided to focus on the major problems of the Agency rather than dealing with the report of Director General on Iran since it is a side effect of fundamental problems in the Agency and its decision making process. However an explanatory note containing comments on the report will be distributed as INFCIRC document.

Read the rest of this entry »


UN Human Rights Council: Claims of CW Use in Syria, But No Proof

This morning the UN Human Rights Council published the report of the Independent International Commission of Inquiry on the Syrian Arab Republic (ICI).

While detailing the horrors of the escalating civil war and the atrocities committed by both sides, the document was eagerly awaited after Commissioner Carla del Ponte had claimed on Swiss-Italian television four weeks ago that the ICI has evidence of rebel use of chemical weapons (CW). She added that it still had to see direct evidence of government chemical warfare. The next day the ICI clarified that ‘it has not reached conclusive findings as to the use of chemical weapons in Syria by any parties to the conflict. As a result, the Commission is not in a position to further comment on the allegations at this time’. Despite its terseness, it did not exactly refute del Ponte’s asseveration.

The 29-page ICI report, however, supports none of the details in her television interview. The introductory summary notes that ‘there are reasonable grounds to believe that chemical agents have been used as weapons’, but ‘the precise agents, delivery systems or perpetrators could not be identified’. CW are addressed in more detail in Part IV(D) on Illegal Weapons:

136. As the conflict escalates, the potential for use of chemical weapons is of deepening concern. Chemical weapons include toxic chemicals, munitions, devices and related equipment as defined in the 1997 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction. Also applicable is the 1925 Geneva Protocol which Syria has ratified. The use of chemical weapons is prohibited in all circumstances under customary international humanitarian law and is a war crime under the Rome Statute.
137. The Government has in its possession a number of chemical weapons. The dangers extend beyond the use of the weapons by the Government itself to the control of such weapons in the event of either fractured command or of any of the affiliated forces gaining access.
138. It is possible that anti-Government armed groups may access and use chemical weapons. This includes nerve agents, though there is no compelling evidence that these groups possess such weapons or their requisite delivery systems.
139. Allegations have been received concerning the use of chemical weapons by both parties. The majority concern their use by Government forces. In four attacks – on Khan Al-Asal, Aleppo, 19 March; Uteibah, Damascus, 19 March; Sheikh Maqsood neighbourhood, Aleppo, 13 April; and Saraqib, Idlib, 29 April – there are reasonable grounds to believe that limited quantities of toxic chemicals were used. It has not been possible, on the evidence available, to determine the precise chemical agents used, their delivery systems or the perpetrator. Other incidents also remain under investigation.
140. Conclusive findings – particularly in the absence of a large-scale attack – may be reached only after testing samples taken directly from victims or the site of the alleged attack. It is, therefore, of utmost importance that the Panel of Experts, led by Professor Sellström and assembled under the Secretary General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, is granted full access to Syria.

Is there anything new?
The strongest refutation of del Ponte comes in §138: insurgents ‘may access and use’ CW  refers to a future possibility, not events in a recent past. The 430 interviews and other evidence collected between 15 January and 15 May 2013 yielded ‘no compelling evidence that these groups possess such weapons or their requisite delivery systems’.

Although the next paragraph states that ‘allegations have been received concerning the use of chemical weapons by both parties’, it does not specify from whom the ICI obtained this information. Listing the main allegations between March and mid-May, the sources may just as well have been the UN Secretary General, the formal requests to Ban Ki-moon by Syria, UK and France to launch a formal investigation of alleged use, or the many media reports. It does not assert, as del Ponte did, that ‘Our investigators have been in neighbouring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated.’ As a matter of fact, the ICI document does not mention sarin a single time. The mere assumption that no UN member would submit to the Secretary general a frivolous request for an onsite investigation allows the Commissioners to write in the introductory summary that there are reasonable grounds to believe that CW have been used, possibly by both sides. In §140 the ICI nonetheless comes to the obvious conclusion that confirmation or refutation of the allegations will be possible only after samples retrieved directly from victims or the site of the alleged attack by an independent international expert team have been tested.

Much ado about nothing?
It is a plain shame that Carla del Ponte has felt the need to join the global chorus of blabberati. Commentaries will invariably focus on her statements, or on whether the ICI document buttresses the Obama Administration’s position that its self-proclaimed red line has not yet been crossed.

Yet, despite the brevity of the section on CW allegations, the report adopts some remarkably thinking in §136:

  • It accepts the Chemical Weapons Convention (CWC) as a foundation of international criminal law. In particular, it embraces the wide-ranging definition of a CW, which means that for criminal prosecution no discrimination between warfare agents based on an ill-defined lethality criterion is acceptable. The CWC applies to incapacitants and irritants (such as riot control agents, for instance, tear gas), as well as to industrial chemicals such as chlorine (a warfare agent of World War I vintage). Whatever toxicant any belligerent may choose to use, it will fall under the remit of an international criminal court for Syria. This statement may well be a first! (See, for example, Yasemin Balci’s discussion of criminal law in Future of the CWC in the Post-Destruction Phase.)
  • It also refers to the applicability of 1925 Geneva Protocol prohibiting the use of chemical and biological weapons in armed conflict and emphasises Syria’s ratification. The phrasing is interesting, because it juxtaposes rather than cascades both international agreements, thus implying that the scope of the CWC definition of a CW also applies to the Geneva Protocol.
  • It declares CW use as prohibited in all circumstances under customary international humanitarian law and determines that it is a war crime under the Rome Statute. Most significantly, it does so in a separate sentence and without specific referral to the Geneva Protocol. Usually, scholars, lawyers and officials will assert that the Geneva Protocol has entered customary international law. According to their phrasing, the ICI Commissioners strongly suggest that the CWC equally informs the customary norm, which is not without consequence given their emphasis on the CWC definition of a CW. It definitely sharpens the boundaries of a war crime as defined under the Rome Statute.

These points will be and have to be the subject of legal debate to bolster the CW prohibition under any and all circumstances.


Hagel Says U.S. Won’t Remain Idle as North Korea Seeks Nuclear ICBM

I was glad to see this GSN article today. Here’s an excerpt:

“The United States will not stand by while North Korea seeks to develop a nuclear-armed missile that can target the United States,” Hagel said in remarks at the annual Shangri-la regional security forum in Singapore.

Officially, the U.S. government does not believe Pyongyang has yet acquired the ability to make nuclear warheads small enough to be fixed to a ballistic missile. However, at least one U.S. intelligence branch suspects the North has that capacity.

“The United States has been clear that we will take all necessary steps to protect our homeland and our allies from dangerous provocations, including significantly bolstering our missile defense throughout the Pacific,” Hagel said.

In response to the North’s growing nuclear and missile capabilities, the Pentagon announced it would strengthen the Ground-based Midcourse Defense system by fielding an additional 14 long-range ballistic missile interceptors in Alaska. Following Pyongyang’s threats earlier this spring that it could carry out nuclear missile strikes on South Korea and the United States, the U.S. military repositioned its Sea-Based X-band radar in order to better detected any possible missile launches, fielded to Guam a Terminal High-Altitude Area Defense system, and moved U.S. warships armed with Aegis antimissile systems closer to the Korean Peninsula.

Its good to see this kind of language being used about the growing North Korean nuclear threat, that I’ve written about a number of times here. And I’m glad to see these missile defense measures being strengthened. I think this is a prudent response to the threat, and a first step in the right direction.