The ‘Massacre’ in Egypt: Implications for International Human Rights Law and Arms Control Law

It is extremely disturbing and sad for the people of Egypt and to humanity that hundreds of people have been killed in Egypt by the army; the interim Government blames the Muslim Brotherhood for engaging in armed violence. The situation may, or may not, deteriorate further. The response of the international community ranges from condemning the violent crackdown against protesters to that of calling restraint on both sides of the equation in Egypt.  It has to be underlined that the AU appears to be the only international organisation which acted decisively and principally, if not without shortcomings, as I argued and highlighted  in my recent post with EJIL: Talk (http://www.ejiltalk.org/author/zyihdego/).

Clearly, the situation was, and still is, complex.  The way the military took power can thus be controversial. What is not controversial, however, is the massive violations of international human rights law – arbitrarily detaining Morsi and his officials and harassing and now killing their supporters.  More specifically, Arts 6 (1) and  9 (1) of the ICCPR requires states and their agents  to respect  and protect the right to life and the dignity and security of a person.  The Egyptian military (and other security forces) have violated this core obligation of the State of Egypt by killing dozens of their citizens. It has to be emphasized that those who participate in religious or other ideological groups are also protected by this fundamental human rights.  The 1979 UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law enforcement Officials of 1990 prohibit illegal, disproportionate and unnecessary use of force against civilians. Both instruments reflect rules of customary international law as indicated in McCann v. UK (ECHR, 5 September 1995).  For further and detailed discussion on the principles see Z. Yihdego, The Arms Trade and International Law, Hart: Oxford, 1997, pp 242-250).

Article 9 of the 1990 Basic Principles underlined that:

‘Law enforcement officials shall not use firearms against persons except in self-defence of other against the imminent threat of death or serious injury, to prevent the preparation of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and extreme means are insufficient to achieve these objectives. In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’.

Without going into polemics of what happened in Egypt before yesterday, the killing of more than 600 people in one day including foreign journalists, using the army and their bulldozers was clearly unnecessary and disproportionate.  Even if there were some armed men among the protestors, as claimed by Egyptian State TV that does not give the Army to fire indiscriminately. I would therefore argue, although further investigation might be necessary to establish the details, as demanded by the UN human rights Commissioner, that, what has happened in Cairo was a blatant violation of fundamental human rights in a larger scale.

 These serious violations of international law in Egypt have implications for arms control law in general and the arms trade in particular. The USA announced that it is suspending its joint military training with Egypt;  but questions will further be asked regarding arms supplies to the Egyptian army under those circumstances by the USA or other weapon supplying countries.  Although the UN Arms Trade Treaty (ATT)  is not yet entered into force, the US and other major exporters,  West European States in particular strongly supported the ATT.  84 state signed and 4 of them ratified the Treaty in just one month time since it was made open to signature and ratification.

Article 7 of the Treaty  obliges States to assess the international human rights risk of arms exports in country of destination. If there is overriding risk that the weapons will be used against these and other values of the international order arms exports shall not be authorised.  It may well be argued that the ATT is not yet in force and thus not applicable to the Egyptian situation. However,  the ATT’s most obligations are deduced from existing legal obligation of states to refrain from contributing or assisting a third state who is engaged in seriously offending  international norms. Even if one doubts this assertion most, if not all, arms exporting countries, including the USA have domestic laws which prohibit such practices. The US domestic law  is robust and clear enough, although  not without shortcomings.  For instance, the USA said that among its Red-Lines with respect to the ATT include:

‘There will be no lowering of current international standards.

Existing nonproliferation and export control regimes must not be undermined.

However, it is open-secrete that the USA is one of the major arms suppliers to Egypt which includes the supply of F-16 modern fighters.  The US may justify this by its national security and other regional interests but would it be lawful, ethical and politically acceptable to arm the Egyptian army?

Amnesty International was urging governments to halting their arms transfer to the Egyptian army since 2011.

Global arms suppliers must halt the transfer of small arms, ammunition and other repressive equipment to the Egyptian military and security forces, Amnesty International said today after the army again violently dispersed protests in Cairo.

The situation has now been escalated to a different level where hundreds of civilians who are demanding  for reinstating a democratically elected government, irrespective of their religious ideology or whether they are bad or good, have been massacred on a broad daylight.  The USA and others who supply armaments to Egypt must re-think about their policy of supplying with weapons to Egypt.  Cancelling a joint military exercise is a good move but not enough. 


Russian Deputy Defense Minister on US Tactical Nuclear Weapons in Europe

I recently saw this statement by Russian Deputy Defense Minister Anatoly Antonov, calling on the US to withdraw its tactical nuclear weapons from the territory of European countries who are NATO members.  He grounds this call in the illegality of the placement of these nuclear weapons under the NPT. As he explains:

As an expert on the Nuclear Non-Proliferation Treaty (NPT) I have a question why nuclear armaments are deployed on the territories of non-nuclear countries. What is the nuclear weaponry control system of NATO states? In my opinion, this is a violation of Articles 1 and 2 of the NPT . . . How does the concept of joint use of nuclear weapons look in this context? NATO states refuse to discuss this issue under the pretext this is an internal affair of the alliance and deny their violation of the NPT provisions . . . We think that the United States and, obviously, NATO countries must decide on the withdrawal of U.S. nuclear weapons to the U.S. territory.

I thought I might offer here some of my analysis from my 2009 book, International Law and the Proliferation of Weapons of Mass Destruction, that essentially supports Antonov’s interpretation of the NPT, as applied specifically to this issue. I finished writing this book in 2008, so the text is a bit dated now. Nevertheless, I think the analysis is still essentially valid. You can find the text on pgs. 13-15. I’ve omitted the footnotes here.

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CD Fails Again to Adopt a Program of Work

This is a pretty depressing account of the Conference on Disarmament’s most recent failure, in a long line of failures, to approve a program of work potentially leading to the negotiation of a new fissile material cut-off treaty. As in previous years, Pakistan is the lone holdout. And in a system that requires consensus, one is all that it takes to stop progress in its tracks (I can’t imagine running faculty meetings this way – they’re bad enough operating under a majority voting system! I was in a three-hour-long one on Monday).

I don’t have alot of deep thoughts about the CD, and I welcome others’ views. I do understand the general idea of moving forward only by consensus, in order to include all of the necessary players to make a resultant treaty worth having. But at some point doesn’t it become just patently obvious that some other mechanism needs to be employed to get to a new arms control treaty? It’s been 16 years now since any negotiations were conducted through the CD.

I mean, if treaties were only ever adopted when every country in the world endorsed them, we’d have precious few treaties. That may be desireable to some people, but it doesnt seem a good policy/practice to me. At some point, if a large majority of states can get on board with an agenda of work, it seems to me that it would be prudent to organize a conference outside of the CD forum in order to pursue the agenda. If Pakistan doesn’t sign the resulting treaty, that’s a shame but it shouldn’t be the cause of holding up the entire FMCT program.

And it would perhaps be good to remember that large, multilateral treaties (at least ones with universal obligations, unlike the NPT) tend over time to produce parallel customary international law, which would bind holdouts as well. This has been recognized to have occured in the cases of the 1982 Law of the Sea Convention and the 1969 Vienna Convention on the Law of Treaties, among others. 


ElBaradei Resigns as Egyptian VP

When I woke up this morning, I heard about the violent displacement of pro-Morsy demonstrators in Egypt by the military-led government. I have been opposed to the military coup in Egypt from the beginning, and today the violent crackdown on essentially peaceful protesters who were unwilling to recognize the resulting military-led government, really brought the situation to a new low. It was in that state of mind that I wrote the following Tweet at 10:02 am:

How can ElBaradei, Nobel Peace Prize winner, justify participation in an unlawful military coup turned violent, repressive government?

Mohamed Elbaradei was, of course, the longtime Director General of the IAEA, who was proven correct in his approach to claims about Iraqi WMD, and who generally was a voice for reason, prudence, and the rule of law during his tenure (having previously served as the Director of the IAEA Office of Legal Affairs).  These qualities and achievements led to his being awarded, jointly with the IAEA, the Nobel Peace Prize in 2005. ElBaradei is a man I have long respected.  And the fact that he had joined the interim government in Egypt as Vice President was something about which I was increasingly dismayed.

Imagine my happiness, then, when I heard just a couple of hours later, that ElBaradei had resigned from his government post in protest of the violence against Morsy supporters. In his resignation letter, he said that:

the beneficiaries of what happened today are those who call for violence, terrorism and the most extreme groups . . . As you know, I saw that there were peaceful ways to end this clash in society, there were proposed and acceptable solutions for beginnings that would take us to national consensus . . . It has become difficult for me to continue bearing responsibility for decisions that I do not agree with and whose consequences I fear. I cannot bear the responsibility for one drop of blood.

Now THAT is what I would expect from ElBaradei. Upon hearing the news, at 11:56am I Tweeted:

So glad to see that ElBaradei has resigned in protest of the gov’t’s violent crackdown on protesters!!! Respect restored!!!

I think ElBaradei has shown that his intentions all along were honorable, as is in complete harmony with his long-proven character. I don’t know all of the facts and considerations that led him to accept a post in the interim government, but I’m confident that he acted at all times in good faith, in furtherance of good principles, and in the best interests of the Egyptian people, as he perceived those principles and interests at the time. And now, in nobly standing up for similar good principles, he has fully restored any previously diminished respect that I have for him. I think he has made a powerful statement in today’s resignation – one that will have a significant effect on outside observers’ opinions of the interim government, due to his international stature.  I applaud his actions today, and I think in light of them, the interim government needs to do some serious reflection, and change its course.


New Blog – Atomic Reporters

I wanted to briefly mention the birth of a new blog called Atomic Reporters.  It describes itself as follows:

AR acts as an information broker improving journalistic understanding and coverage of nuclear issues. Policymakers themselves need to be better-informed as does the general public. The future of nuclear weapons, the safety of nuclear power, nuclear security, and concern about the soaring use of ionising radiation in medicine, for example, should be the focus of informed public debate. Better reporting would contribute to a more engaged public and more responsive policy.

I recommend it. It’s already got some very interesting material on it, including a link to a new Wilson Center report on Brazil’s clandestine nuclear program in the 1970’s-1980’s, which likely involved weapons-related activity, and the role China played in assisting this program.  Makes for very interesting reading, and helps to inform our understanding of other similar cases.

On August 6, the blog also covered several topics and then asked the following questions:

How are the Arms Control Lawyers holding up against the Arms Control Wonkers? There’s been something of an insurrection among arms-control theologians. Why are NPT and IAEA-CSA literalists cast as apologists? What lessons might be gleaned from the Brazilian experience of the 1970s to the Iran challenges of today? How does recognition of India as a de facto nuclear-weapons state affect the NPT? What utility would the NPT continue to serve were Pakistan to receive the same dispensation as India?

Those are darn good questions/observations. Especially the one about NPT/IAEA-CSA literalists being cast as apologists. I’d say that observation pretty much sums up my own situation. By insisting on a correct interpretation of these legal sources, according to well established legal principles, I am often cast as an apologist for the countries whose arguments these interpretations happen to support. It seems to be my particular burden to bear.


NSA Disclosures Derail Cyber “Star Wars” Defense Strategy?

In today’s New York Times, David Sanger published an article that the damage caused by Edward Snowden’s disclosures of NSA surveillance might have killed what Sanger calls “the equivalent of a ‘Star Wars’ defense for America’s computer networks, designed to intercept cyber attacks before they could cripple power plants, banks or financial markets.” More specifically:

Under this proposal, the government would latch into the giant “data pipes” that feed the largest Internet service providers in the United States, companies like A.T.&T. and Verizon. The huge volume of traffic that runs through those pipes, particularly e-mails, would be scanned for signs of anything from computer servers known for attacks on the United States or for stealing information from American companies. Other “metadata” would be inspected for evidence of malicious software.

Whether this idea would have matured and proceeded without leaks about NSA surveillance is not clear because opposition within the US government existed:

Top officials of the Department of Homeland Security, which is responsible for domestic defense of the Internet, complained that N.S.A. monitoring would overly militarize America’s approach to defending the Internet, rather than making sure users took the primary responsibility for protecting their systems.

The deputy secretary of defense, Ashton B. Carter, described in speeches over the past year an alternative vision in which the government would step in to defend America’s networks only as a last line of defense. He compares the Pentagon’s proper role in defending cyberattacks to its “Noble Eagle” operation, in which it intercepts aircraft that appear threatening only after efforts by the airlines to identify the passengers and by the Transportation Safety Administration to search passengers and luggage have failed.

The disclosures about NSA surveillance and its scale have, however, altered the nature of discourse in Washington, D.C. about this debate on US cyber defense in ways that make progress in this area, for the near future, potentially very, very difficult.


President Obama Announces Steps to Address Concerns About NSA Surveillance

Today, President Obama outlined steps his administration would take to address the controversial debate taking place concerning NSA surveillance activities disclosed by Edward Snowden. The New York Times reports that:

Mr. Obama announced the creation of a high-level task force of outside intelligence and civil liberties specialists to advise the government about how to balance security and privacy as computer technology makes it possible to gather ever more information about people’s private lives.

The president also threw his administration’s support behind a proposal to change the procedures of the secret court that approves electronic spying under the Foreign Intelligence Surveillance Act in order to make its deliberations more adversarial. The court, created in 1978, was initially envisioned to carry out a limited role of reviewing whether there was sufficient evidence to wiretap someone as a suspected foreign terrorist or spy.
. . .
The Obama administration is also planning to release a previously classified legal analysis explaining why the government believes it is lawful under a provision of the Patriot Act known as Section 215 for the N.S.A. to collect and store logs of every phone call dialed or received in the United States.

At the same time, the N.S.A. was expected to release a paper outlining its role and authorities, officials said. The six- to seven-page document was described as setting up a “foundation” to help people understand the legal framework for its activities. Next week, the agency will open a Web site designed to explain itself better to the public amid Mr. Snowden’s disclosures.

The “previously classified legal analysis” on the government’s interpretation of Section 215 is available now in a document entitled: Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act (August 9, 2013).

For the argument that the bulk telephony metadata program does not satisfy the requirements of Section 215, see this amicus brief filed with the US Supreme Court today by a group of professors expert in information privacy and surveillance law, a group that includes me. This amicus brief supports the petition filed in July with the Supreme Court by the Electronic Privacy Information Center against the bulk telephony metadata program.

Related to the President’s announcement, the NSA released a document today entitled The National Security Agency: Mission, Authorities, Oversight and Partnerships (August 9, 2013), which, among other things, describes NSA’s authorities to collect intelligence under Executive Order 12333 and the Foreign Intelligence Surveillance Act, including Section 702 of that Act (the legal basis for the PRISM program targeting non-US persons located outside the US).


It’s Baaack! The Biosecurity Controversy Over “Gain-of-Function” Research on Influenza Viruses Returns

On August 7th, a group of influenza scientists published online a letter in Nature in and Science in which they proposed conducting “gain-of-function” (GOF) research on the avian influenza A (H7N9) virus. GOF research is sometimes discussed as “dual use research of concern,” or DURC. I have posted on Arms Control Law, and published elsewhere, on developments in the biosecurity and public health controversy over GOF research on the highly pathogenic avian influenza A (H5N1) virus by Dutch researchers, led by Ron Fouchier from the Erasmus Medical Center, and American scientists, led by Yoshihiro Kawaoka from the University of Wisconsin-Madison. The announcement of the proposed GOF experiments on the H7N9 virus has brought the controversy back into the spotlight.

To recap, “gain-of-function” research involves scientific experiments that alter pathogens in ways that give them features or functions not presently found in the wild. In the H5N1 GOF research that sparked the worldwide controversy from late 2011 until early 2013, researchers manipulated the H5N1 virus so that it achieved transmissibility between mammals–a capability the virus had not readily demonstrated in nature. Generally speaking, an objective of GOF research on influenza viruses is to provide an earlier understanding of how the viruses might mutate in the wild and cause human pandemics, potentially giving scientists and public health experts more time to develop potential responses, such as alerting surveillance systems and preparing vaccine strategies.

Critics of the H5N1 GOF research worried about a number of problems, including whether (1) biosafety conditions in laboratories would be adequate to prevent accidents that could cause outbreaks, and (2) such experiments could threaten biosecurity by providing states, terrorists, or criminals with “blueprints” for making biological weapons. The controversy led to delayed publication of the H5N1 GOF research results, a voluntary moratorium on GOF research, and the development by the U.S. government of new, stricter rules and oversight processes for GOF research it funds.

Similar to the GOF H5N1 experiments, the proposed H7N9 GOF research includes, among other things, experiments “[t]o assess the pandemic potential of circulating [H7N9] strains and perform transmission studies to identify mutations and gene combinations that confer enhanced transmissibility in mammalian models (such as ferrets and guinea pigs).” Global health concerns about the H7N9 virus arose in spring 2013 when a worrying number of cases of humans infected by contact with birds occurred in China. As of early July, the mortality rate among humans infected with H7N9 was approximately 33%, making the virus a killer pathogen. To date, the H7N9 virus has not demonstrated serious human-to-human transmission, but the fear is that it might mutate and spread more readily in human populations. The proposed GOF experiments on the H7N9 virus are intended to give scientists and public health officials possible insights into how the virus might change into something more fearsome–and, thus, give them more time to prepare.

Critical reactions to the proposed H7N9 GOF research indicated that the biosecurity and public health controversy over GOF experiments has not subsided. A flavor of the criticism can be found in this story from Science:

“The scientific justification presented for doing this work is very flimsy, to put it mildly, and the claims that it will lead to anything useful are lightweight,” says Adel A. F. Mahmoud, an infectious disease specialist at Princeton University and the former president of Merck Vaccines. And the security precautions are “insufficient and amazingly lame,” says molecular biologist Richard Ebright of Rutgers University in Piscataway, New Jersey.

And from this story in The Scientist:

Simon Wain-Hobson, a virologist from the Pasteur Institute in France, was critical of the move. “Since when do scientists try to get manifestos into Nature and Science?” he asked. “If they were going to do the human genome or go after the Higgs boson, I could understand that, but this is extraordinarily focused. They are ramming gain-of-function experiments down our throats against debate, and it’s not scientific.”
. . .
Michael Osterholm, director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota and a vocal critic of last year’s decision to publish the H5N1 research, added that the flu community still has not rigorously weighed the risks and benefits of gain-of-function studies. “I support doing them for basic research purposes, and I have always maintained that Yoshi [Kawaoka] and Ron [Fouchier] could do this work safely,” he said. “But my concern is that publishing their data would allow labs around the world, which won’t adhere to the same safety requirements, to do the same.”

Osterholm added that the signatories of today’s letter have overstated the benefits of gain-of-function research, including the potential for developing better vaccines and antiviral drugs, or improving surveillance measures. “We still do H5N1 surveillance in the same way a year later,” he said.

In terms of arms control and non-proliferation, the GOF controversy includes arguments about the BWC’s (ir)relevance to the challenge of balancing public health and biosecurity in scientific research. The BWC review conference in December 2011 occurred when the H5N1 GOF controversy was in full swing, but the BWC states parties did not address it in any serious way , despite much rhetoric about the BWC being a central forum for discussing biosecurity issues beyond the traditional focus on non-proliferation of biological weapons by states. The reticence of BWC states parties to address this controversy connected to a larger governance problem that emerged from the H5N1 GOF research episode–the inadequacy, or lack of, adequate national and international rules and processes to deal effectively with the pros and cons of GOF research.

The scientists proposing the H7N9 GOF research are seeking U.S. government funding, so the proposal will be subject to the heightened U.S. rules and procedures adopted after the H5N1 controversy. The H7N9 GOF experiments, if approved and funded by the U.S. government, will go forward under these rules. How the U.S. government handles these proposals under its new approach will be closely watched by the biosecurity, public health, and scientific communities around the world.


Nuclear Strategy Push-Back Against the “Cyber Industrial Complex”?

Greg Austin of the EastWest Institute published a piece in China-US Focus on August 6th in which he identifies possible push-back against the US government’s race to achieve “cyber superiority” and the emergence of “the American cyber industrial complex” from people in the US military knowledgeable about US nuclear weapons and strategy. He argues that disclosures by Edward Snowden reveal a “lack of restraint” in US cyber behavior and:

This lack of restraint is especially important because the command and control of strategic nuclear weapons is a potential target both of cyber espionage and offensive cyber operations. The argument here is not to suggest a similarity between the weapons themselves, but to identify correctly the very close relationship between cyber operations and nuclear weapons planning. Thus the lack of restraint in cyber weapons might arguably affect (destabilize) pre-existing agreements that constrain nuclear weapons deployment and possible use.

The cyber superiority of the United States . . . is now a cause of strategic instability between nuclear armed powers. . . . [I]n the long run, the most influential voice to end the American quest for cyber military superiority may come from its own armed forces. There are military figures in the United States who have had responsibility for nuclear weapons command and control systems and who, in private, counsel caution. They advocate the need to abandon the quest for cyber dominance and pursue a strategy of “mutual security” in cyber space – though that has yet to be defined. They cite military exercises where the Blue team gets little or no warning of Red team disruptive cyber attack on systems that might affect critical nuclear command and control or wider war mobilization functions. Strategic nuclear stability may be at risk because of uncertainty about innovations in cyber attack capability. This question is worth much more attention.

Cybersecurity literature contains references and analogies to nuclear weapons and nuclear strategy, including attempts to draw on the nuclear experience to address what some perceive as a cyber arms race. However, Austin is talking about something different–concern among experts that what is happening with US cyber policy, strategy, and capabilities threatens US nuclear strategy and stability. I do not know how prominent such strategic introspection actually is, or whether it deserves the level of deliberation Austin advocates.

In the most general terms, Austin seeks reassessment of what he and others believe is an insufficiently restrained American quest for superiority in military and intelligence cyber capabilities–not because of perceived threats to privacy and other civil liberties at home, but because this path might create strategic problems for US national security down the road, including in the context of nuclear weapons. For Austin, this reassessment should include more scrutiny of permitting one military officer to lead both NSA and US Cyber Command, a situation Austin provocatively describes as “an unprecedented alignment of Praetorian political power in any major democracy in modern political history.”

A unrestrained cyber industrial complex led by a cyber Praetorian guard potentially causing strategic nuclear instability? Well, now, the “national conversation” is getting more interesting by the day . . .


Paul Pillar: Iran’s Nuclear Legal Obligations

A very good piece by Paul Pillar out yesterday in The National Interest.  I’m pleased to see that he shares a number of the same views I’ve expressed, on some of the same topics I’ve covered recently, in my posts. I’ll go ahead and copy the whole thing here.

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