David Koplow’s New Article on US CWC Noncompliance

David Koplow of Georgetown University Law Center has just recently published an article entitled Train Wreck: The U.S. Violation of the Chemical Weapons Convention in the Journal of National Security Law & Policy. See the full pdf of the article here.  David is a leading arms control law scholar who, in addition to his academic work, has had applied experience through several stints in high level government positions. These positions have included Special Counsel for Arms Control to the General Counsel of the Department of Defense (2009-2011); Deputy General Counsel for International Affairs at the Department of Defense (1997-1999); and Attorney-Advisor and Special Assistant to the Director of the U.S. Arms Control and Disarmament Agency (1978-1981).  He’s also a very generous colleague and a nice guy to boot. I haven’t convinced him to come onto ACL as a blogger . . . yet.  But he knows he has a standing invitation!

This new piece of David’s begins like this:

The United States is violating a multilateral arms control treaty. Russia is, too. It’s not just some minor accord at stake; it’s the 1993 Chemical Weapons Convention (CWC), the critical, near-universal undertaking to banish the centuries-old scourge of chemical warfare. And it’s not just some trivial misstep; it’s a blatant transgression of one of the treaty’s most fundamental provisions, requiring the timely destruction of the massive inventories of chemical weapons (CW) that the planet’s erstwhile superpowers had laboriously constructed and assiduously maintained throughout the Cold War. And it won’t be a near-miss; each country will stumble years beyond complying with the treaty’s April 29, 2012, final deadline for accomplishing the total dismantling of this noxious ordnance – the United States now figures to eclipse that mandatory mark by at least eleven years.

Now that is how you start a law review article! A great hook for readers. It continues:

How did we get into this mess? How did the United States, the leading exponent of the rule of law and a prime mover in negotiating and implementing the CWC, fall into such conspicuous violation? What can be done at this point to extricate ourselves and the Russians from this grisly political and legal predicament? And what can we do in the future to avoid other similar international law train wrecks? This article parses the problem of noncompliance with the CWC’s dismantling obligations as a case study in the operation (or non-operation) of international law.

As is typical of David’s work, this article is thorough and excellent. I recommend it highly.

Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?

Well I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran.  For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning.  It now resembles a Gordian Knot, and I don’t envy President Obama his choices.

I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.

But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point.  Turkey and others have said that these strikes by Israel are a violation of international law.  Are they right?

Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law.  I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago.  Even since then I’d say my views have evolved, and are still evolving.

In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.

That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.

Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict.  So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.

One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states.  In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.

This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense.  Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts.  And if there aren’t, then someone definitely should write one!

My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.

Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book.  It was, of course, not just a targeted counterproliferation strike.  It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.

I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.

Egyptian Delegation Walks Out of NPT PrepCom Meeting Over Failure to Convene Middle East WMD Summit

I just read about this here.  Quite a surprising move, but I’m personally glad they did it.  I think it is time for action on this issue.  Although it is a bit quizzical as to why they didn’t coordinate with other Arab League states beforehand. Does this indeed show fracturing on strategy within the Arab League on this issue? I’m pretty sure there’s still consensus on principle.

Readers will recall I’ve written on the ME WMD FZ issue several times, most recently here.  I think that Egypt and the rest of the Arab league are perfectly justified in feeling that an important deal they made in 1995 has been broken by the West, and as Ambassador Badr was quoted as saying in the GSN piece: “We cannot continue to attend meetings and agree on outcomes that do not get implemented, yet be expected to abide by the concessions we gave for this outcome.”

I’ll just put in a couple of cents worth of thoughts on the underlying issues. As we all know, the whole ME WMD FZ issue is about Israel. The fact that Israel has nuclear weapons, and hasnt signed the NPT, nor will they even admit to having nuclear weapons. The Arab League is tired of the double standard of treatment that they receive from the West in the nuclear area, as compared to how Israel’s nuclear program is treated by the West. The ME WMD FZ project is a way to put the spotlight of the international community squarely on Israel’s nuclear weapons stockpile, and put Israel and its backer, the US, in the uncomfortable position of having to explain why Israel won’t come to the meeting and won’t meaningfully engage with the program.

As I’ve noted, I’ve recently been to Israel. I think that we can enhance our understanding of other nations’ policies and attitudes so much by putting ourselves, as much as possible, into their shoes and looking at the world from their perspective. It’s the failure of so many observers to be able to do this that narrows their ability to objectively analyze problems in international relations.

If I put myself in the shoes of Israeli officials, I totally understand why Israel wants to have nuclear weapons, doesnt want to sign the NPT, and wants to keep the whole thing “in the basement.” If I were an Israeli official, with the history of the Holocaust as my personal and national context, I would do the exact same thing. But here’s where I think Israel’s policies in the nuclear area start to get indefensible – when they criticize other countries for wanting their own nuclear weapons, or for even doing research to build up their capability to one day acquire nuclear weapons if they decide they need them.  This is just basic hypocrisy, and the absence of any principled leg to stand on. It doesn’t have anything to do with history, or with Israel’s unique perspective on the world.  And I really don’t like it when people say, well, Israel isnt under a legal obligation not to have nuclear weapons, whereas these other countries are.  Israel’s failure to sign the NPT, and the West’s willful blindness toward this fact, are not a diplomatic asset that Israel and the West can play as a card to justify the double standard.  In this regard, Israel is part of a rather ignominious club of regime outlier states – rogue states if you will – that also includes India, Pakistan and North Korea. Its not a moral high ground fact.

I think that it would gall the Arab League states a whole lot less if Israel and the West would pull the reins in on the double standard they apply so publicly, and in international institutions such as the IAEA and the U.N. Security Council, as between Israel’s nuclear program and the nuclear programs of every other state in the region.  If the rhetoric and the policies of the US and the West generally weren’t so very prejudicial toward Middle Eastern states, with the glaring exception of Israel, when it comes to both peaceful nuclear technology trade and nonproliferation policy (going back to the Leveretts’ article I posted about earlier) it might well take much of the wind out of the sails of the ME WMD FZ movement, and contribute a lot to the general level of support for the NPT in the Middle East.

New Article by the Leveretts in the Huffington Post

Friends of ACL Flynt & Hillary Leverett have written an excellent new article in the Huffington Post here.  I agree with everything they have written here (with only one small reservation below) and I think they explain the issues of legal interpretation in a very accessible, and correct, way.

The only point on which I’d like to do some more thinking myself is the WTO point they make. Theyre obviously referring to GATT Article XXI here, and I’m not saying theyre wrong. I’d just like to think about it a bit more before going on record in agreement. I wrote about GATT Article XXI at some length in Chapter 3 of my 2009 book, and I’m planning to address it in a new book I’m planning to begin writing on soon. Much of Article XXI is quite intentionally broadly and subjectively worded, and there is virtually no WTO case law on it, and so determining that a national security related action does not fall within it can be difficult. Certainly not impossible, though, as I argued in my book regarding dual use export controls.

But certainly all of their points regarding the NPT I agree with fully. Do have a look at Flynt & Hillary’s new article.

New Congressional Research Service Report on Iran Sanctions

Check it out here. Very thorough and informative.  Quoting from the Summary section:

Increasingly strict sanctions on Iran—which target primarily Iran’s key energy sector as well as its ability to access the international financial system—have harmed Iran’s economy, but not to the point where key Iran leaders have been compelled to reach a compromise with the international community on Iran’s nuclear program. And, the strategic effects of sanctions might be abating as Iran adjusts to them economically and advertises the adverse humanitarian effects.

This jives with the conclusions of the recent NIAC report on the efffectiveness of sanctions on Iran, about which I posted a while ago.  It’s also consistent with my general views on sanctions which I’ve written about a number of times, including here and here starting on Pg. 6.

I really hope this starts to sink in in Washington – that sanctions will not force Iran into doing what the US and Israel want it to do regarding its nuclear program. I also hope it sinks in with people like Orde Kittrie who have so misguidedly been pushing for newer and tougher sanctions on Iran for years. 

Public Service Announcement

One of the nice things about blogging over traditional media is that we can tap into the people behind the stories and interactively pick the brains of experts. In that regard, I’m pleased to pass on a public service announcement by Prof. Yousaf Butt at the James Martin Center for Nonproliferation Studies at the Monterey Institute. Yousaf is a nuclear physicist and an expert on technical arms control. He’s one of the few folks active in both science and policy (and indeed, at their interface), and has served as an invaluable resource to the community by explaining complex technical matters in a straightforward jargon-free way. He’s also been instrumental in debunking a lot of misinformation/propaganda on Iran’s nuclear program propagated by the usual suspects. Anyway, he has kindly agreed to provide one-on-one guidance to any aspiring scientists (or other academics) thinking about navigating over to the policy world. Yousaf can provide you the inside scoop on the DC scene, as well as on what’s going down on the West Coast, e.g. at the Monterey Institute. If you’re contemplating studying or working on technical arms control issues, especially at Monterey or in DC, I urge you to take advantage of this opportunity to pick Yousaf’s brain! As he mentions, there is great need for scientists (and science) in policy-making…the situation is so dire and the need for science in DC is so great that even institutes without any scientists have put “Science” in their titles!  So without further ado, I’ll let Yousaf explain his offer:

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I’d like to thank Dan for hosting this Q&A on his excellent blog. I’m certain that some of the ideas being discussed on this blog day-to-day will determine the future trajectory of arms control. I’ve long thought we need some fresh thinking on arms control and non-proliferation: as any of the diplomats from Non-Aligned Movement will tell you, we are witnessing the death throes of the NPT. The bulk of the fault, in my view, lies with the multiple “band-aid” solutions and outright politicization of the nonproliferation institutions by some of the P5 states. In fact, a few months ago I proposed the broad outlines of what an NPT 2.0 could look like. That’s why I admire Dan’s intellectual honestly, and find his blog to be an enormous resource to the community.

As a small gesture of thanks, and as my own small contribution to helping train up the next cadre of arms control professionals, I’m happy to try to answer any questions any students or scientists/academics may have about transitioning over to the arms control NGO community. I can’t say I’ll have the answers but I’ll try my best! If there are general non-personal questions please post them in the comments section below, but if you need any personal advice you can email me at ybutt2002 –at- yahoo.com . (I’ll try my best to get back to you as soon as possible, depending on the traffic that’s generated.)

By way of background, my own transition to security studies started in Cambridge, MA while I was a staff scientist at the Harvard-Smithsonian Center for Astrophysics (CfA). Luckily, the Union of Concerned Scientists (UCS) was just down the road near Café Algiers, and a CfA colleague had just gotten a job there. Through her, I found out about a research fellowship on Space Security and was launched on my way…out of outer space and pure science and into technical arms control and global security issues. In parallel, however, I continued my science work. When I heard about the fellowships at the National Academy of Sciences, I applied for those and moved to DC for a bit. DC is an all-you-can-eat buffet of seminars, lectures, roundtables on policy but it is  – for the most part – shockingly science-deprived! So it’s good there are outfits like the Federation of American Scientists, for whom I later consulted leading to a report with Ted Postol of MIT: “Upsetting the Reset – the Technical Basis of Russian Concern Over NATO Missile Defense.”  Of course, that report was not what the community wanted to hear at the time, but in the end we were proven correct and one of recommendations has just been adopted (dropping the Phase IV of the NATO missile defense system). My point is the science in invaluable in the policy world: from Climate change, to nuclear power,  to clean energies, to missile defense, to nuclear weapons etc. – there are few decisions that can be made without scientific or technical input. Yet DC remains, in my opinion, highly science deprived. So if you’re a scientist or science student looking to join the policy world there is plenty (plenty!) of need! But you may need to be somewhat entrepreneurial in finding the channels to make the transition. There are also unique challenges academics may face in the transition: for instance, as academics we take freedom of expression for granted, but things can be a little different in the NGO world where there may sometimes be subtle pressures to hew to the political opinions of the funding institutions or senior administrators.

In any case, if I can help, or if you’re thinking of working/studying in DC or Monterey and want to know what to expect, or how I’ve found the experiences, drop me a line at ybutt2002 –at- yahoo.com or post your comments below.

Reza Nasri on UNSC Role Regarding Iran

Reza Nasri has written a really important analysis about the unhelpful role the UN Security Council has played in the Iran nuclear issue.  I endorse his view and his prescription completely. Its a relatively short piece in the CS Monitor. I hope neither he nor the Monitor mind, but I’ll reprint the piece here:

To Nudge Iran Talks, New UN Resolution Needed

The latest round of nuclear talks between Iran and “P5+1” international negotiators ended earlier this month with no more than an agreement to resume negotiations at a later date. As usual, pundits on both sides offered their assessments about why the talks did not succeed.

But one factor – UN Security Council resolutions that Iran “suspend all enrichment-related activities” – may play more of a role in fruitless negotiations than most commentators realize.

Since 2006, when the Security Council first made that demand, it has repeated it in three subsequent resolutions, the latest being Resolution 1929, adopted in June 2010. But the demand to cease all uranium enrichment is overly restrictive, essentially denying Iran the ability to develop even peaceful nuclear power. For the negotiation process, this restrictiveness poses several problems.

First, the resolutions are out of touch with the realities on the ground in Iran – namely, enrichment taking place that is not at bomb grade (at least not yet). They are also out of date, neglecting all the developments and understandings that both sides have achieved throughout various rounds of negotiations since 2006.

Today, after years of multilateral negotiations, most negotiating countries seem to have adopted a more pragmatic and practical approach and no longer truly expect a full suspension of Iran’s nuclear activities. Nonetheless, the shadow of the Security Council’s unrealistic and outdated request still looms over the talks.

Second, because of the Security Council’s radical stance on enrichment, world powers cannot legally offer Iran any meaningful relief on international sanctions in exchange for fair and reasonable concessions from Tehran. In the present climate, agreeing to anything short of a full suspension of Iran’s nuclear activities would breach UN resolutions, and that would set a bad precedent and dent the credibility of the UN collective security regime.

Third, because of the legal restrictions that these UN resolutions impose on all states, including on Western states that are in the process of negotiating with Iran, P5+1 negotiators cannot legally offer Iran any technical incentive to secure its cooperation. The Security Council effectively bans most forms of assistance to, and investment in, Iran’s nuclear and energy sector. That restricts the  P5+1 negotiators, which are legally bound to maintain the full force of the resolutions, from offering any captivating alternative to Iran.

To illustrate the point, Germany’s Green Party submitted a proposal last year in which the German government would help Iran build a solar energy facility in exchange for Iran curbing some aspects of its nuclear program. Such a proposition, and similar ones, could have been put on the table by the P5+1 to increase the negotiations change of success. But the Security Council renders such creative initiatives irrelevant as their realization would be illegal under its resolutions.

In other words, because of these legal strictures, the P5+1 goes to the negotiation table without having the capacity to offer its counterpart any positive incentive, something that most negotiators would find a handicap rather than a leverage to their advantage.

Of course, despite these legal restrictions, various international actors have occasionally been able to offer promising deals to Iran. For example, in May 2010, Brazil and Turkey persuaded Tehran to ship 1200 kg (2640 pounds) of its low-enriched uranium to Turkey (as a confidence-building measure) based on a proposal that was initially drafted by the Obama administration. However, the United States itself subsequently blocked the bargain on the ground that it still did not meet the restrictive demands of the Security Council.

“While it would be a positive step for Iran to transfer low-enriched uranium off of its soil as it agreed to do last October, Iran said today that it would continue its 20 percent enrichment, which is a direct violation of United Nations Security Council resolutions,” the White House said in a statement.

In sum, despite the fact that the UN Charter mandates the world body to encourage and facilitate peaceful settlements of international disputes, it seems that in the case of Iran’s nuclear crisis, the Security Council has had the exact opposite effect.

The way out of this conundrum is for the Security Council to issue a new resolution. The resolution would do two things: It would explicitly acknowledge whatever achievement the P5+1 track has so far produced. And it would promise to lift its sanctions if the parties reach a “reasonable agreement” – notwithstanding previous resolutions.

Such a move by the Security Council would greatly help to resolve the Iranian nuclear problem in a peaceful manner. It would give Iran the long-awaited assurance that its cooperation would be met with some degree of reciprocation. And it would free Western negotiators from the burden of having to work within the unrealistic and outdated UN strictures on enrichment.

It remains to be seen which member of the Security Council is bold enough to propose such a draft resolution.

Reza Nasri is an international lawyer specializing in Iranian affairs and charter and foreign relations law at the Graduate Institute of International and Development Studies in Geneva.

Liron Libman on the ATT

Friend of ACL Liron Libman has written a  truly excellent review and discussion of the new ATT over at his blog.  I highly recommend it as the best review and explanation I’ve seen of the ATT so far.

I had the pleasure of meeting Liron when I was recently in Jerusalem. He was previously the head of the International Law Department of the Israeli Defense Force. So he’s someone eminently qualified to write on the ATT. He’s also a really nice guy.

Why Nuclear Supplier States are in Collective Breach of the NPT

I have argued before, and particularly in my 2011 book, that the NWS parties to the NPT, along with the other supplier state NPT parties, are collectively in breach of the NPT’s terms due to their overly restrictive policies regarding export of peaceful nuclear energy technologies to developing countries, as harmonized through the Nuclear Suppliers Group.

Here’s what NPT Article IV(2) says (emphasis mine):

All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

So, supplier states parties to the NPT (“parties in a position to do so”) are under an international legal obligation to contribute to the further development of applications of peaceful nuclear energy technologies by NNWS, and in particular developing NNWS.  This obligation provides the backdrop for considering the lawfulness of the restrictions that supplier states have agreed upon through the NSG on the export of nuclear technologies, and in particular dual use nuclear technologies.

In light of this obligation, let’s think about the current dispute between the US and South Korea, in which South Korea is trying to negotiate a nuclear technology sharing agreement with the US which allows for the export to South Korea of nuclear technologies, including enrichment and reprocessing technologies, from US vendors.  The US is so far unwilling to allow transfers of these technologies due to proliferation concerns. See reports here and here.

Enrichment and reprocessing technologies are of course dual use – meaning that they play an integral part in a state’s development of a full peaceful nuclear fuel cycle, but they can also be used in a nuclear weapons development program – like most of the other parts of the nuclear fuel cycle.  The US, and the other members of the NSG, consider enrichment and reprocessing (ENR) technologies to be especially proliferation sensitive because of the particular roles they play in the nuclear fuel cycle, and their susceptibility for use in producing fissile materials for a nuclear explosive device. For this reason, the NSG guidelines were recently revised to place even higher restrictions on these technologies than on other technologies in the fuel cycle. (See my post on this revision from Arms Control Wonk here)

But what about the obligation of the US under NPT Article IV(2) quoted above? Can the US get out of this obligation simply by declaring that some dual use technologies that are part of the fuel cycle are in its opinion too proliferation sensitive, and therefore can be restricted from trade with NPT NNWS? This is the basis assumption on which the entire NSG Part II guidelines and trigger lists are maintained. But I think this assumption is fundamentally erroneous.

Read the rest of this entry »

Relative Evidentiary Standards?

Am I the only one who sees in the US official position on allegations by Israel and others of chemical weapons use in Syria, quite a different approach than the one the US has taken regarding allegations by Israel and others of a nuclear weapons program in Iran?  There was a very good story on NPR about the allegations concerning CW use in Syria this morning (see here) and of course it’s in other news outlets as well (see here).

The US seems to be requiring “conclusive evidence” of the use of CW in Syria before it will consider that its “red line” (where did this recently ubiquitous phrase come from anyway?) regarding Syrian use of WMD has been crossed, requiring the US to intervene in a significant way in the country’s bloody civil war. The standard being required by the US appears to be much higher than that required by Israel and also by France and the UK, who all appear convinced that CW have been used by the government in Syria against opposition forces.  In this Reuters piece, there is speculation that the US is trying to learn from its mistakes in the lead up to the Iraq war in 2003 regarding intelligence and the presence of WMD.  Some of that may be going on. But I can’t help thinking that what’s really going on here primarily is that, unlike the Iraq case in 2003, and unlike the Iran nuclear case, the US really does not want to get involved seriously in Syria, and so is moving the goalposts of evidentiary standard regarding WMD in this case so that they are unlikely ever to be met – intentionally.

I mean, think about all the US has done to Iran on the basis of nothing near “conclusive evidence” of an Iranian nuclear weapons program – in fact on the basis of no real evidence at all, and in the face of the US intelligence community saying Iran DOESN’T have a NW program. And yet the US has imposed crippling sanctions on Iran and has exerted every ounce of compulsory pressure it can muster on the basis of this lack of evidence.

What I’m saying is that the standard of evidence for the presence of WMD in the Iran case, the Syria case, and the Iraq case in US policy, seem very relative and circumstantial, and have much more to do with whether the US wants, for political, ideological, and self-interested reasons, to get involved in a specific situation, than it does with a consistent, law-based approach to dealing with suspected proliferation cases.

This shouldn’t necessarily come as a surprise – its really just mirroring US policy in other areas, for example in humanitarian intervention. It’s common knowledge that the standard for serious US involvement in cases of humanitarian suffering has much more to do with the region where it is occurring, exactly who it is happening to, and what US economic and security interests will be served through getting involved, than it has to do with a consistent and genuine concern with humanitarian suffering. See the Kosovo case versus the Rwanda and Sudan cases.