In his June 19 remarks at the Brandenburg Gate in Berlin, President Obama stressed the theme of achieving “peace with justice” in addressing challenges the United States and its allies face–and two of the challenges he highlighted are of interest to the readers of Arms Control Law–nuclear weapons and cyber surveillance against terrorism.
Press reports have often focused on the President’s proposal to reduce the numbers of US and Russian nuclear warheads by one-third from the levels set in the New Start Treaty. But the President’s remarks went beyond this proposal to lay out an even more ambitious agenda of nuclear diplomacy for his second term.
After declaring that “so long as nuclear weapons exist, we are not truly safe[,]” the President said:
Peace with justice means pursuing the security of a world without nuclear weapons — no matter how distant that dream may be. And so, as President, I’ve strengthened our efforts to stop the spread of nuclear weapons, and reduced the number and role of America’s nuclear weapons. Because of the New START Treaty, we’re on track to cut American and Russian deployed nuclear warheads to their lowest levels since the 1950s.
But we have more work to do. So today, I’m announcing additional steps forward. After a comprehensive review, I’ve determined that we can ensure the security of America and our allies, and maintain a strong and credible strategic deterrent, while reducing our deployed strategic nuclear weapons by up to one-third. And I intend to seek negotiated cuts with Russia to move beyond Cold War nuclear postures.
At the same time, we’ll work with our NATO allies to seek bold reductions in U.S. and Russian tactical weapons in Europe. And we can forge a new international framework for peaceful nuclear power, and reject the nuclear weaponization that North Korea and Iran may be seeking.
America will host a summit in 2016 to continue our efforts to secure nuclear materials around the world, and we will work to build support in the United States to ratify the Comprehensive Nuclear Test Ban Treaty, and call on all nations to begin negotiations on a treaty that ends the production of fissile materials for nuclear weapons. These are steps we can take to create a world of peace with justice.
Predictably, this agenda has sparked questions, skepticism, and opposition. But, with the speech, the President made clear that he wants his presidential legacy linked with global progress toward a world without nuclear weapons.
Cyber Surveillance and Terrorism
In a less noted section of the speech, the President included the challenge of “balancing the pursuit of security with the protection of privacy” within the “peace with justice” agenda. Here the President was referring to the international controversies caused by the disclosure of secret US surveillance programs, including PRISM, which targets Internet communications of foreign nationals. The President’s host, German Chancellor Angela Merkel, has been one of the leading European politicians to raise concerns about PRISM. The President said:
Our current programs are bound by the rule of law, and they’re focused on threats to our security — not the communications of ordinary persons. They help confront real dangers, and they keep people safe here in the United States and here in Europe. But we must accept the challenge that all of us in democratic governments face: to listen to the voices who disagree with us; to have an open debate about how we use our powers and how we must constrain them; and to always remember that government exists to serve the power of the individual, and not the other way around. That’s what makes us who we are, and that’s what makes us different from those on the other side of the wall.
Unlike pushing nuclear diplomacy forward, President Obama, no doubt, did not plan to talk about this issue in this speech but was forced to do so by the fallout from the disclosures. Here, the President defends what he believes is “peace with justice” in terms of the balance his administration struck between preventing terrorism and protecting civil liberties. This balance, and the process through which it is achieved, he distinguished “from those on the other side of the wall”–a phrase that resonates with memories of physical walls of the past and worries about virtual walls of the present. Whether Americans agree with the President about what should happen on our side of the wall remains to be seen, an outcome that will also affect how history remembers this President.
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.
The Guardian newspaper has made available the text of a discussion paper by the Foreign Ministry of Austria circulated on 13 May 2013 to EU member states, forcefully rebutting British and French arguments for amending the European embargo on Syria to allow weapons shipments to the rebels.
The document, entitled ‘SYRIA: Austrian Position on Arms Embargo’, first puts forward several political and security arguments, among them the following (summary only):
– Lifting the EU arms embargo undermines the EU-Russia understanding that opens a window of opportunity towards a renewed political process.
– The ‘Syrian National Coalition for Revolutionary and Opposition Forces (SOC)’ does not have full authority and control over all armed opposition groups and cooperates with groups which include various extremist and terrorist fighters.
– There are more than enough weapons in Syria.
– The supply of arms to the opposition by EU member states constitutes an additional threat to the security of UNDOF [United Nations Disengagement Observer Force, which supervises the implementation of the 1974 disengagement agreement and the ceasefire between the Israeli and Syrian forces] peacekeepers, including from Austria.
But the most interesting part of the paper argues that the supply of arms to the Syrian opposition would be in breach of international law and EU law.
The main arguments developed in that respect deserve being quoted in full (I have only made minor typographical changes to the text and omitted certain developments):
1. The supply of arms to the Syrian opposition would amount to a breach of the customary principle of non-intervention and the principle of non-use of force under Art. 2 para. 4 of the UN Charter.
The principle of non-intervention is firmly established in international law. In 2007, former UK Legal Adviser Sir Michael Wood put it in a nutshell: “Intervention on the side of those opposing the Government […] is clearly prohibited” (The Principle of Non-Intervention in Contemporary International Law, Speech by Sir Michael Wood at a Chatham House International Law discussion group meeting held on 28 February 2007). In the 1984 Nicaragua Case the International Court of Justice (ICJ) rejected any alleged right for States to intervene in support of an internal opposition in another State, whose cause appeared particularly worthy for political or moral reasons: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law” (para. 209). The ICJ also stated that acts constituting a breach of the customary principle of non-intervention would also, if they directly or indirectly involve the use of force, constitute a breach of the prohibition not to use of force in international relations, as embodied in Art. 2 para. 4 of the UN Charter. The continuing relevance of the Nicaragua Case was confirmed by the ICJ in its 2005 judgement in the Case concerning Armed Activities on the Territory of the Congo: “In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State” (para. 164).
2. The supply of arms to the Syrian opposition would violate EU Council Common Position 2008/944/CFSP on the control of arms exports by EU Member States.
All EU Member States have agreed to abide by Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment when assessing applications to export items listed in the agreed EU Common Military List. An objective assessment of the Criteria in Art. 2 of Common Position 2008/944/CFSP according to the agreed guidance of their interpretation and implementation in the EU’s User’s Guide (User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, Doc. 9241/09, 29 April 2009) must lead to a denial of any export licence applications for the envisaged supply of arms to the Syrian opposition:
- Criterion 2(c) (human rights and humanitarian law): Member States shall deny an export licence if there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law. The UN Commission of Inquiry reported that “war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti-Government armed groups” (Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/21/50, 16 August 2012).
- Criterion 3 (internal situation): Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. The User’s Guide does not foresee that arms would be supplied to opposition groups involved in an armed conflict and places particular attention on the role of the end-user in a conflict.
- Criterion 4 (regional peace, security and stability): Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. Despite the 1974 cease-fire agreement, Syria and Israel remain in a state of war, which was recently reignited by Israeli air and missile strikes. The Syrian opposition has not declared to respect the cease-fire, the disengagement agreement or the area of separation.
- Criterion 5(b) (national security of Member States): Member States shall take into account the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries. […]
- Criterion 6 (behaviour of the buyer as regards its attitude to terrorism, the nature of its alliances and respect for international law): […]
- Criterion 7 (risk of diversion): […]
3. The supply of arms to the Syrian opposition would amount to a violation of Security Council resolution 2083 (2012) establishing an arms embargo against individuals and entities associated with Al-Qaida. […]
4. Member States supplying arms to the Syrian opposition would incur State responsibility for aiding and assisting in the commission of internationally wrongful acts.
According to Art. 16 of the ILC Articles on State Responsibility a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible if (a) that State does so with knowledge of the circumstances of the internationally wrongful act ; and (b) the act would be internationally wrongful if committed by that State. The Commentary inter alia states “a State may incur responsibility if it […] provides material aid to a State that uses the aid to commit human rights violations. In this respect, the UN GA has called on member States in a number of cases to refrain from supplying arms an other military assistance to countries found to be committing serious human rights violations” (para. 9). When applying these principles to the envisaged supply of arms to the Syrian opposition, it is to be considered that war crimes, including murder, extrajudicial killings and torture, are perpetrated by anti-Government armed groups in Syria, as reported by the UN Commission of Inquiry, as well as suicide bombings and attacks against and hostage-taking of UNDOF peacekeepers, as is known from the daily news. Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid an assistance in the commission of such acts.
[end of document]
A comment on the Austrian position
The arguments set out in the Austrian paper are in my view well-founded and persuasive, particularly those based on the principle on non-intervention and the relevance of the Nicaragua Case (see on the topic the articles on the Nicaragua Case 25 years after published in 2012 in the Leiden Journal of International Law), and deserve being taken into account very seriously by the decision-makers of countries which advocate allowing weapons shipments to the Syrian rebels.
There is another point that was not mentioned by the paper. Regarding the responsibility issue raised in para. 4 of the document, I would add that if the proposed amendment to the arms embargo is adopted in the framework of the EU CFSP, the 2011 Draft articles on the Responsibility of International Organizations (DARIO) would also be relevant. Indeed, in that situation, international responsibility might also be incurred by the EU itself, in addition to the responsibility of EU member States. Article 17(1) DARIO provides that
[a]n international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding memberStates or international organizations to commit an act that would be internationally wrongful if committed by the former organization.
The ILC’s commentary on that provision refers to a statement of the legal counsel of WIPO according to whom
[. . .] in the event a certain conduct, which a member State takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that State and of that organization, then the organization should also be regarded as responsible under international law.
It appears thus that in the event that arms supplied to armed opposition groups in Syria be used by the latter in the commission of internationally wrongful acts, the international responsibility of both the EU as an international organization and of the EU Member States might be simultaneously incurred.
In any case, it will be interesting to follow the matter, and in particular to see whether proponents of arms supply to opposition armed groups in Syria will put forward international legal arguments supporting their position.
When Israel struck targets in Syria on 30 January, global attention turned to the possibility that the Assad regime might have decided on transferring weapon systems to one of its staunchest backers, the Hizbollah in Lebanon. A prime motivation, so some of the speculation goes, is the Syrian desire to avoid sophisticated weaponry from falling into the hands of insurgents. The column hit by Israeli planes reportedly transported anti-aircraft missiles, a weapon system the Syrian army hardly has any use for at present, but which could threaten its aerial monopoly in rebel hands. Syrian sources claimed that Israel also hit a military research facility, presumably involved in chemical and biological weapon (CBW) development. Unless there were several Israeli raids, the claim must amount to the Middle Eastern equivalent of the magic bullet theory in President John F. Kennedy’s murder investigation. Weapons transfers and a presumed CBW facility: the question whether the Syrians are passing on their chemical weapon (CW) holdings to Hizbollah cannot linger far behind.