As you’ve probably seen, Russian President Vladimir Putin has written an op-ed in the New York Times, including an impassioned plea for the U.S. to abide by international law and in particular the UN Charter process of obtaining Security Council authorization for any international use of force. He adds that it is “alarming that military intervention in internal conflicts in foreign countries has become commonplace for the United States . . .” and urges the U.S. to seek exclusively diplomatic solutions for problems with other countries.
Oh, nuts. Instead of linking to Putin’s NYT op-ed above, I accidentally linked to an article about the Russian army invading Georgia in 2008, without Security Council authorization, in what Putin argued was a humanitarian intervention. Oh well, I guess I’ll just leave it there. It nicely makes the next point I was about to make anyway.
Two very significant developments reported in this article in the Jerusalem Post:
1. Russia has approved the sale of S-300 anti-aircraft missiles to Iran;
2. Russia has also agreed to build another nuclear reactor at Bushehr.
Kind of seems like Russia is flexing its muscles in doing some things it knows the US doesn’t want it to do. Putin is back.
Like everyone else, I’m following the news about the Russian proposal for Syrian chemical weapons to be surrendered to international inspectors, and removed from Syrian territory. The narrative of how this came about, including Kerry’s gaffe turned diplomatic opportunity, makes for diverting reading. Whatever its provenance, it does seem to have come at an opportune moment for President Obama, providing him a welcome escape out of his self-imposed predicament of an imminent “no” vote from Congress on his plan for missile strikes on Syria.
I’m still listening to the idea as its being spun out by – whoever is spinning it. And in theory it sounds like a fine idea. But color me a pessimist at the moment that this would in reality do any more than to provide President Obama a face-saving exit, at least in the short term, from his political mess, and give Assad a way to neutralize the threat of US military force while requiring only that he play along with an international inspection and removal operation that will take years to complete, and that would never be able to provide any real assurance that he won’t have more chemical weapons readily available to him if he wants them.
This CNN article, referencing the experience of inspectors in Iraq and noting the challenges facing the implementation of this idea in Syria, pretty well expresses my view at this point.
The Secretariat will have to review such a request in light of legal authorities, mandate, and resources and must determine whether there is a scientific basis for conducting a highly speculative investigation of this kind. In short, this will need further study. Looking past the current context, Mr. Chairman, it is our view that [such] requests for . . . analyses of hypothetical scenarios are beyond the IAEA’s statutory authority. The IAEA has never before conducted this type of analysis, and it would exceed IAEA’s mandate, and have far-reaching implications that exceed IAEA capabilities and authorities.
Guess who said it?
If you guessed the Iranian representative to the IAEA, regarding the IAEA’s continuing refusal to find Iran in compliance with its safeguards obligations, based largely on unevidenced suspicion and speculation about what may have happened, or what might in the future happened in Iran . . . . YOU’D BE WRONG!
This was, in fact, the US representative to the IAEA, Joseph Macmanus, complaining about a Russian request that the IAEA consider how a potential US strike on Syria might create new threats through the destruction of storage facilities for nuclear material in Syria. That, Macmanus argues, would clearly be an overstepping of the IAEA’s legal mandate.
Can someone loan me a knife with which to cut this irony?
I agree completely with this new post by Peter Spiro over at Opinio Juris, in which he argues:
The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.
If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.
Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)
In fact I wrote much the same thing in a comment to one of my posts here on ACL last week:
As for whether Assad is behind the CW attacks, I have no more information than anyone else does. But a number of compelling factors in this case to me are the following. First, it does seem that there are some pretty damning intercepts showing Syrian army involvement. Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria. If the intelligence is good enough to bring him grudgingly to the conclusion that Assad or at least the Syrian army is responsible, that is persuasive contextual evidence to me. Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes. This is not even in the ballpark of being analogous to the invasion of Iraq in 2003. No one, and I mean no one, questions that the Syrian government has long possessed chemical weapons. They have now been used and there appears to be compelling evidence that the Syrian military is responsible. Sending a message that this is unacceptable through a limited use of force seems appropriate to me.
That being said, I almost wish now that Obama would drop the idea, because its now become such a huge talkshop issue. I think its been blown way out of proportion in terms of its implications and the whys and wherefores of it, and that now Congress is involved its just going to be an excruciatingly annoying political football.
If Obama was going to do it, he should have just done it a week ago. The domestic wrangling that’s now going to happen will have no bearing on the international legality of the strike. Its almost farcical now to be debating this in Congress as if it were a decision comparable to the Iraq 2003 decision. And all the old Iraq demons are being brought out in the process. To be clear, as I’ve said before, no one opposed the 2003 Iraq intervention more vehemently and consistently than me. But the current Syria issue shouldn’t even be mentioned in the same breath with it. And now that it is being so mentioned, I do almost wish it would be abandoned.
I’ve also noticed, since the administration has started trying to sell the idea to Congress, that there has been substantial “mission creep” in how the scope of the action is being described. When I was voicing my support for it early on, I understood it, and I think everyone understood it, to be a proposal for perhaps 48 hours of cruise missile strikes and perhaps some limited bombing, on Syrian military targets for the express and exclusive purpose of responding to the regime’s use of chemical weapons.
Now I hear administration officials talking about the strikes as not only sending a message about chemical weapons use, but also shifting the strategic balance in the Syrian civil war towards the rebels. And the timeframe and scope of the strikes themselves seems now to be a lot more open ended and indeterminate, with the only assurance of agreed limits appearing to be the “no boots on the ground” pledge. I definitely don’t support a US military strike in Syria that is purposed in getting the US substantively involved in Syria’s civil war and shifting the strategic balance towards the rebels. And as I argued in a comment to one of David Fidler’s posts last week, the scope of a military action is itself material, in my view, to the analysis of its legality under international law. As I said there:
This is a great post, David, and represents well the legal difficulties of this situation. I wrote a piece about Kosovo in 2001, and have dramatically changed my view of the humanitarian intervention issue since that time. I still doubt that there is a formally established right of humanitarian intervention in customary law. But at the same time, I have a hard time condemning small scale uses of international force when circumstances seem to warrant them, as in the present case. For me, its the limited nature of the use of force that makes the legal problems seem manageable. I think that as the nature of a military intervention expands and becomes more serious and sustained, so the legal problems do and should multiply. As you know, in the pre-Charter era, a distinction was often made in custom between “war” and “uses of force short of war.” The UN Charter is often said to have done away with that distinction, but it is sometimes argued, and I have alot of sympathy for this argument, that there are times when justifiable military force falling below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.
I think, unfortunately, that the idea of a US military strike on Syria has morphed substantially from where it began a week ago, and that the version of the idea now being sold to Congress is something that I don’t think is either justifiable under international law, or prudent for the US to undertake. I think, as Peter Spiro says, that if Obama was going to do this thing, he should have done it last weekend unannounced, in a limited, targeted manner, with the express purpose of sending a message to the Assad regime that chemical weapons use would not be tolerated. I think Obama would have weathered any domestic and international criticism that may have been forthcoming, because everyone would at an essential level have understood why he did it, even if they didn’t agree with the specific action he took. But the situation now is, I think, perfectly described by Shakespeare in Julius Caesar when he says, through Brutus:
There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.
The tide has now receded.
I call bullshit on this right now.
UPDATE: New Iranian statement denying this report here.
I just saw this article, which reports on several new cases decided by the EU General Court (incorrectly identified as the European Court of Justice in the article) in which it has annulled EU measures imposing financial sanctions on Iranian banks and other businesses for their alleged involvement in supporting Iran’s nuclear program.
This is a continuation of a trend in EU General Court jurisprudence, about which I recently posted here.
You can read one of these newest judgments, in the case of Post Bank Iran, here.
Again, the basic rationale of the court in these case is that the EU has violated the businesses’ basic rights to due process of law by imposing financial sanctions on the basis of insufficient evidence. Here’s how the court explained it in the Post Bank Iran case:
According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see Case C‑417/11 P Council v Bamba  ECR I‑0000, paragraph 49 and the case-law cited).
The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see Council v Bamba, paragraph 69 above, paragraph 50 and the case-law cited).
Where the freezing of funds has considerable consequences for the persons, entities and bodies concerned, for it may restrict the exercise of their fundamental rights (Case C‑548/09 P Bank Melli Iran v Council  ECR I‑0000, paragraph 49), and, moreover, those persons, entities and bodies are not afforded the opportunity to be heard before the adoption of an initial fund- freezing measure, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling those persons, entities and bodies, at least after the adoption of the initial measure, to make effective use of the legal remedies available to them in order to challenge its lawfulness (see Council v Bamba, paragraph 69 above, paragraph 51 and the case-law cited).
The principle of effective judicial protection therefore means that the European Union authority which adopts the initial fund-freezing measure is bound to communicate the grounds for that measure to the person, entity or body in question, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable that person, entity or body properly to exercise its right to bring an action.
SYRIA AND BIOLOGICAL WEAPONS?
Joby Warrick has a story in today’s Washington Post about emerging concerns that Syria has, and might use, biological weapons. The article states:
Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.
This latent capability has begun to worry some of Syria’s neighbors, especially after allegations that the regime of President Bashar al-Assad used internationally banned chemical weapons against civilians in an Aug. 21 attack.
Top intelligence officials in two Middle East countries said they have examined the potential for bioweapons use by Syria, perhaps as retaliation for Western military strikes on Damascus. Although dwarfed by the country’s larger and better-known chemical weapons program, Syria’s bioweapons capability could offer the Assad regime a way to retaliate because the weapons are designed to spread easily and leave few clues about their origins, the officials said.
The story is definitely worth a read, but I am not going to guess what people might read into it.
Very briefly, as for the applicable treaty law on biological weapons, Syria is a party to the Geneva Protocol of 1925 but is not a party to the Biological Weapons Convention. As with chemical weapons, most international lawyers hold that customary international law bans the use of biological weapons in any form of armed conflict. As a member of the UN, Syria is subject to relevant Security Council decisions on biological weapons, such as Resolution 1540 on preventing non-state actors from obtaining WMD material.
SYRIA AND CLUSTER MUNITIONS?
Rick Gladstone in the New York Times reports on allegations that the Syrian military has used cluster munitions:
In the shadow of a confrontation over whether Syria’s government had attacked civilians with internationally banned chemical munitions, a rights group reported Wednesday that Syrian armed forces had repeatedly used cluster bombs, another widely prohibited weapon, in the country’s civil war.
The group, Human Rights Watch, said in a report on cluster bomb use that it had documented dozens of locations in Syria where cluster bombs had been fired over the past year.
Cluster bombs are munitions that may be fired from artillery or rocket systems or dropped from aircraft. They are designed to explode in the air over their target and disperse hundreds of tiny bomblets over an area the size of a football field. Each bomblet detonates on impact, spraying shrapnel in all directions and killing, maiming and destroying indiscriminately.
The Human Rights Watch report mentioned can be found here. Syria is not a state party to the Convention on Cluster Munitions.
You may download here the full report (PDF in French) released by the French government on its intelligence assessment on the use of CWs in Syria. I heard this morning on France-Info a French MP labelling it a ‘Wikipedia-style’ report.
The international legal blogosphere is alight with writing about the potential use of force by the U.S., and possibly France, against Syria, in response to the alleged use of chemical weapons by the Assad government, killing more than 1400 civilians.
I have been extremely pleased to have David Fidler’s and Liron Libman’s excellent piecces on this topic here on ACL. I’m particularly pleased because I think that both of them have, in expert fashion, zeroed in on the most persuasive identification of the law applicable to this issue. I think they have both correctly identified that, notwithstanding the UK government’s formal arguments regarding humanitarian intervention, this potential use of force would not be best understood as a humanitarian intervention, but rather as a direct response to Syria’s violation of international law prohibiting the use of chemical weapons. The purpose of this use of force, if rendered honestly – and not intentionally obscured by the typical resort to some species of self defense claim – would be to respond forcefully to this violation of the laws and norms governing behavior of states during armed conflict, and send a message of unacceptablility in order to deter similar future actions. And as Fidler and Libman urge, I think we in the international legal community need to deal with it on this basis, and not get off track into other veins of argumentation.
I read this morning a very good post on EJIL:Talk by Shane Darcy which made this same point, and I would recommend his piece to you as a very good review of the law of armed and belligerent reprisals. I think his post is a nice complement to what David and Liron have been writing here. Darcy does conclude that armed reprisals likely are unlawful under current international law, and I don’t take issue with his assessment. But I think that the kind of thought experiments somewhere at the intersection of the lex lata and the lex ferenda, of the type engaged in here by Fidler and Libman, are important.
As I said before, I have long been concerned that the absolutist interpretive approach to Article 2(4) of the UN Charter, which essentially says that, absent a compelling case for unilateral self-defense, international law never allows any international uses of force not approved by the Security Council, makes international law and international lawyers seem seriously and dangerously removed from the reality of international relations, and the need at times to use force in international relations for justified causes. And that, to the extent international law is seen to be simply impractical in the area of international uses of force, it is likely to be ignored, to the harm of international law’s credibility in this and potentially other areas as well.
I wonder if we can understand what the drafters of the UN Charter did in structuring the UN Charter system, in light of when they did it – i.e. after the experience of two horrific world wars. Its easy to see how, at that moment in 1945, there was an understandable eagerness to forbid anything that might even possibly lead to such a catastrophy of full-on great power warfare ever happening again. But I wonder if, with the passage of almost 70 years, the attending changes in international mores, and political and technological circumstances, we can with credibility say that that regime, which made emotive and intellectual sense to the drafters of the Charter, should still govern international relations today? Again, I have made these arguments more fully elsewhere.
I think that the arguments of theory and practicality, and particularly those of the slippery slope, made against the dilution of the bright line rule in Article 2(4), and the recognition, for example, of discrete rules allowing for humanitarian intervention, armed reprisals, counterproliferation-oriented preemptive self-defense, are well made and are persuasive. For example, if we were genuinely to pursue the legitimation of a rule permitting armed reprisals, could not that same argument be used by Israel’s neighbors to justify attacks on Israel in response to alleged violations of international humanitarian law committed by Israel in Gaza and the West Bank? Or for that matter by any number of states to justify attacks on US targets in response to alleged violations of international humanitarian law committed at Guantanamo Bay or by US drone strikes? You can imagine how this list could go on and on, potentialy eroding any clear prohibition on international uses of force.
Personally, I would say that I am dissatisfied with the absolutist approach to Article 2(4), and am open to and encouraging of the kind of thought experiments in which David and Liron have been engaged here. I think that the challenge of restructuring international law to allow for lawful uses of force in “just” situations – like humanitarian interventions, pre-emptive counterproliferation strikes, and reprisals against violations of international humanitarian law – and yet disallow uses of force in “unjust” situations (e.g. Iraq 2003, Iran 2013), is the holy grail of modern international legal scholarship and international lawmaking. I don’t think we’ve come close to cracking it yet.