weapons

maamThe wee hours in Geneva today brought news of an agreement to regulate Iranian nuclear development, blocking nuclear weaponry and easing global sanctions. The agreement’s a victory for what, back in 2007, I dubbed the talking cure – a welcome turn of events after decades in which tensions escalated even as telephone lines remained silent. (It is just 8 weeks since the leaders of Iran and the United States talked for the 1st time in 34 years; just 5 days since the leaders of Iran and Britain talked for the 1st time in a decade.) The European Union-Iran statement on the agreement is here, text of Joint Plan of Action here, and a White House fact sheet is here.

The guy getting credit for all this is a woman. She’s Catherine Ashton, the coal miner’s daughter and onetime activist in the Campaign for Nuclear Disarmament who’s served since 2009 as the European Union’s 1st-ever High Representative of the Union for Foreign Affairs and Security Policy. Ashton’s early days in that post were rocky, but she persevered. She’s been in the trenches negotiating with Iran for years. The Guardian‘s Julian Borger reports that during this week’s diplomatic marathon at Geneva, while other delegates nicked out for pilaf or pizza, “Lady Ashton, the EU foreign policy chief steering the talks, often just made do with bar snacks.” And so today the media are painting Ashton as a hero – “from ‘zero’ to hero,” as the Telegraph of London rather snarkily put it.

Pivotal is the quality that an unnamed Brussels diplomat assigned to Ashton: “emotional intelligence.” There will be need for much of that as leaders work to win approval of the deal in their own states.  Most notably the United States, where some same-day reactions indicate more fondness for the hostile old status quo than for a chance to edge toward a calmer international future.

(credit for above photo of today’s Geneva announcement, depicting a chestnut-suited Ashton flanked by, from left, British Foreign Secretary William Hague, German Foreign Minister Guido Westerwelle, Iranian Foreign Minister Mohammad Javad Zarif, Chinese Foreign Minister Wang Yi, U.S. Secretary of State John Kerry, Russian Foreign Minister Sergey Lavrov, and French Foreign Minister Laurent Fabius)

UN_Members_FlagsEven before yesterday’s news that Israel might follow Syria in joining the Convention on the Prohibition of Chemical Weapons, worth noting was recent state action on treaties intended to increase international peace and security, for children and adults alike.

In the course of last week’s U.N. Treaty Event, lots of press was given to the United States’ lone show of support in this area; that is, Thursday’s signing of the 2013 Arms Trade Treaty. Yet at least as significant as that tentative show of support – also made by more than a score of other states – were countries’ full joinders of various pacts. (photo credit) Here’s what happened with regard to some other treaties of interest:

Peace, security, accountability

► 2010 Amendments on the crime of aggression to the Rome Statute of the International Criminal Court: Andorra, Cyprus, Slovenia, and Uruguay ratified or accepted, bringing the total number of adherents to 11. The United States is not among them. As detailed in posts here and here, these amendments cannot take effect any earlier than 2017, and then only if 30 states have accepted and a further vote has been taken. According to tweets from the Crime of Aggression project, countries working toward ratification include Argentina, Australia, Austria, Belgium, Brazil, Chile, the Czech Republic, Finland, New Zealand, Romania, Slovakia, Spain, Switzerland. If all join, the amendments would be 6 short of the minimum required.

► 2010 Amendment to Article 8 of the Rome Statute of the International Criminal Court: Andorra, Cyprus, Slovenia, and Uruguay ratified or accepted this treaty, which would enumerate as crimes in non-international armed conflict certain acts now prohibited only with respect to international armed conflict. The total number of adherent now stands at 14. The United States has not approved these amendments, which cannot take effect any earlier than 2017, and then only if 30 states have accepted and a further vote has been taken.

► 1996 Comprehensive Nuclear Test-Ban Treaty: Guinea-Bissau ratified, bringing the total number of parties to 161. Despite the high level of participation, this treaty cannot enter into force unless certain countries have joined. Among those is the United States, which signed in 1996 but has not ratified, the Senate having rejected the treaty in 1999.

► 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment: Guinea-Bissau ratified, bringing to 154 the total number of parties – the United States among them. Angola signed; the treaty has 80 signatories.

► 1948 Convention on the Prevention and Punishment of Genocide: Guinea-Bissau acceded, bringing to 143 the total number of parties – the United States among them.

► 2006 International Convention for the Protection of All Persons from Enforced Disappearance: Guinea-Bissau signed this treaty, which entered into force in 2010. It now has 93 signatories and 40 parties. The United States has neither signed nor ratified.

Children’s rightsUnicef_Children

► 2011 Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Montenegro and Portugal ratified this treaty, which would allow children to bring complaints to the U.N. Committee on the Rights of the Child. That brings the total number of adherents to 8; the treaty cannot enter into force until after the deposit of 10 instruments of ratification or accession. Benin, Côte d’Ivoire, Ghana, Guinea-Bissau, and Seychelles signed, bringing the total number of signatories to 42. The United States has neither signed nor ratified this treaty.

► 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography: the Russian Federation ratified this treaty, which entered into force in 2002. That brings to 165 the total number of parties. The United States is among them.

Complete record of Treaty Event activities here.

syriaWhat began as a multifaceted assault on warfare in Syria ended last night with a U.N. Security Council resolution sapped of accountability strength. (credit for UN photo)

The draft resolution France had circulated in mid-September condemned the August 21 chemical attack that killed more than a thousand persons outside Damascus, restricted chemical weapons and components, and set up a travel ban and asset freeze against violators. What is more, it called for the Council

to refer the situation in Syria since March 2011 to the Prosecutor of the International Criminal Court ….

That referral clause was significant because it would have engaged the world’s only permanent international criminal forum in Syria – not just the August 21 attack but the entire situation in Syria, since the violence began. (Prior posts.) The need for a large frame is evident in the 1st sentences of the August 2013 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic:

The Syrian Arab Republic is a battlefield. Its cities and towns suffer relentless shelling and sieges. Massacres are perpetrated with impunity. An untold number of Syrians have disappeared.

Notwithstanding, the ICC referral effort appears soon to have fallen by the diplomatic wayside. Thus Security Council Resolution 2118, adopted unanimously last night, said nothing of asset freezes or travel bans. It said nothing about the ICC. What little it did say was limited to chemical weapons and said with rather soft verb forms:

The Security Council,
….
Accountability
15. Expresses its strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable; ….

‘Nuff said.

icjDevoid from much of the U.S. debate about whether to use military force against Syria is any exploration of nonviolent ways to condemn the use of chemical weapons and to push for an end to Syria’s multiyear civil war. (Prior posts.)

While it’s true that Russia, in particular, says it will veto action in the U.N. Security Council, we’ve not seen any public effort to apply effective pressure on Russia to do otherwise. No threat of a Western boycott of the Sochi Olympics – to hearken to one tool used during the Carter Administration – or any other action that similarly might sting the Putin regime. (By no means am I advocating a boycott, which does unwarranted harm to athletes. I mention it, rather, as an example of the kind of out-of-the-box thinking we haven’t seen voiced in this runup to a possible Syrian intervention. As posted months ago with respect to Syria, in this sense diplomacy hasn’t been tried.)

And while there’s been much hand-wringing over Russia’s apparent opposition to a Security Council referral of the situation in Syria to the International Criminal Court, we’ve heard no exploration of another Carter-era tool – a lawsuit in the International Court of Justice. (photo credit) My students and I have just studied that suit, brought against Iran after the November 1979 takeover of the U.S. Embassy in Tehran. The ICJ’s May 1980 decision in the Diplomatic & Consular Staff Case (U.S. v. Iran) pronounced the wrongfulness of Iran’s failure to protect the embassy and its personnel during and after the takeover. The court’s order that the two sides negotiate an appropriate remedy fueled a bilateral settlement which resulted in the release of the 52 U.S. hostages and the establishment of the Iran-U.S. Claims Tribunal, which to this day arbitrates disputes between the 2 countries.

Why not pursue a similar course in the current crisis, in lieu of or in tandem with other avenues?

A possible vehicle for such a suit would be the 1984 Convention Against Torture. Article 1(1) defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Surely, this definition is satisfied by the conduct alleged against the Syrian government: attacking civilians with chemical weapons – nerve agents that bring long-lasting injury or death to human beings – for the purpose of exacting punishment against or coercing capitulation by rebel forces.

The Convention Against Torture may serve as a vehicle for litigation because Article 30(1) contains a clause conferring ICJ jurisdiction:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

The United Nations’ online treaty database indicates that when Syria joined the Convention on August 19, 2004, it did not limit the effect of Article 30. That seems to open a path for a state party – if not the United States, which did place some limitations on its own joinder, one of the many other countries calling for action against Syria – to insist on negotiation of this dispute over chemical weapons use, with an eye to suing in the ICJ 6 months’ hence if negotiations come to naught.

An ICJ judgment that explores the relation of a chemical attack to the universal ban against torture could do much to enhance the current claim that such an attack crosses an “international redline.” Even if some snag prevented the issuance of a judgment as unequivocal as that in the Diplomatic Staff case (maybe a lex specialis concern, to name one), resort to negotiation/litigation might enable a more deliberate, less violent resolution to this grave situation.

map_syriaKudos to President Barack Obama for deciding to put to the test of democratic deliberation his support for using military force against Syria in the wake of the August 21, 2013, chemical weapons attack outside Damascus. (image credit)

The decision is welcome not just because of the Obama Administration’s failure so far to build, within or without the U.N. Security Council, a global coalition – a  failure signified most starkly by Thursday’s “No” vote in the British Parliament. The decision to debate is also welcome because the proposed use of force raises serious questions of international and national law and policy. Deliberation offers opportunities for legitimation and education, not to mention further exploration of nonforcible measures like sanctions or a referral to the International Criminal Court, both of which were deployed in the 2011 Libya crisis. (Prior Syria posts here.)

Below, thanks to CNN.com, is the full text of the Administration’s draft Authorization to Use Military Force in Syria. The draft likely will form the basis for ensuing debates in the House of Representatives and Senate.

* * * *

Whereas, on August 21, 2013, the Syrian government carried out a chemical weapons attack in the suburbs of Damascus, Syria, killing more than 1,000 innocent Syrians;
Whereas these flagrant actions were in violation of international norms and the laws of war;
Whereas the United States and 188 other countries comprising 98 percent of the world’s population are parties to the Chemical Weapons Convention, which prohibits the development, production, acquisition, stockpiling or use of chemical weapons;
Whereas, in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Congress found that Syria’s acquisition of weapons of mass destruction threatens the security of the Middle East and the national security interests of the United States;
Whereas the United Nations Security Council, in Resolution 1540 (2004), affirmed that the proliferation of nuclear, chemical and biological weapons constitutes a threat to international peace and security;
Whereas, the objective of the United States’ use of military force in connection with this authorization should be to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction;
Whereas, the conflict in Syria will only be resolved through a negotiated political settlement, and Congress calls on all parties to the conflict in Syria to participate urgently and constructively in the Geneva process; and
Whereas, unified action by the legislative and executive branches will send a clear signal of American resolve.
SEC. ___ AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES
(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —
(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or
(2) protect the United States and its allies and partners against the threat posed by such weapons.
(b) War Powers Resolution Requirements. —
(1) Specific Statutory Authorization. — Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements. — Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

instrument - CopyWith the joinder last week of the Republic of Nigeria, the 2013 Arms Trade Treaty has 4 states parties. That leaves 46 to go for entry into force – a number that seems achievable, given that 83 states have taken the 1st step of signing the treaty since its April 2 approval by the U.N. General Assembly. As previously posted, the Assembly’s vote (154 aye-3 nay-23 abstain) became necessary when Iran, Syria, and North Korea blocked adoption by consensus at the late-March conclusion of a final treaty-drafting conference.

Secretary of State John Kerry proclaimed in June: “The United States welcomes the opening of the Arms Trade Treaty for signature ….” But to date the United States is not a signatory.

As detailed in the final text and previously posted, the treaty is intended to regulate “conventional arms”; that is: heavy weapons like battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles, and missile launchers; ammunition; and small arms and light weapons.

After depositing the instrument of ratification, Olugbenga Ashiru, Nigeria’s Minister of Foreign Affairs, was quoted as follows:

‘This landmark event represents our deep commitment to a treaty which establishes common international standards for the import, export and transfer of conventional arms … We remain resolute and unyielding in our efforts to uphold the principle of ATT and, in particular, ensure that small arms and light weapons are appropriately transferred and access denied to terrorist groups, pirates, bandits and the like.’

His reference to nonstate actors occurred against the backdrop of Nigeria’s struggle against Boko Haram, a group responsible in recent years for attacks against civilians in the northern and central parts of the state. (According to the BBC, “Boko Haram,” “roughly translated means ‘Western education is forbidden’ in the local Hausa language.”) Earlier this month, a report by the Office of the Prosecutor found reasonable basis to characterize some attacks as crimes within the jurisdiction of the International Criminal Court. And just this week, a report surfaced that the armed group’s leader may have been killed.

Nigeria joins Antigua and Barbuda, Guyana, and Iceland as an early ratifier of the Arms Trade Treaty.

(above, detail from August 14, 2013, photo of Nigeria’s instrument of ratification, in the hands of Minister Ashiru, left, and D. Stephen Mathias, the UN’s Assistant Secretary-General for Legal Affairs)

unamaThe cover photo of a new U.N. report speaks a thousand words: more and more, the protracted conflict in Afghanistan is claiming children as its victims. A reader hears these running children’s screams viscerally – much as she felt viscerally the life of a photographed 8-year-old child soldier in Syria.

Sadly, this visceral impression is confirmed by the text of the 94-page Mid-Year Report on the Protection of Civilians in Armed Conflict, issued yesterday by UNAMA, the U.N. Assistance Mission in Afghanistan. The report begins with a boy’s account of his mother’s killing in a Kabul suicide attack, then sets out grim statistics:

‘Escalating deaths and injuries to Afghan children, women and men led to a 23 percent resurgence in civilian casualties in the first six months of 2013 compared to the same period in 2012. UNAMA documented 1,319 civilian deaths and 2,533 injuries (3,852 casualties) from January to June 2013 ….’

This growth, the report continued,

‘reverses the decline recorded in 2012, and marks a return to the high numbers of civilian deaths and injuries documented in 2011.’

Increasingly, killings caused by improvised explosive devices and gunfights affect children (up 30%) and women (up 61%). The UNAMA report stated that international forces’ handover of security responsibility to national forces had “met with increased attacks by Anti-Government Elements” –  elements to whom 3/4 of the deaths were attributed.

Other documented offenses against children included:

► Attacks on education; that is, attacks on students and their teachers, destruction or occupation for military use of school buildings

► Recruitment and use of children into the government’s armed forces and into armed anti-government groups

► Attacks on hospitals, other health-care facilities, and medical personnel

► Displacement, within or without the country

Recommended to stem this tide? Compliance by all parties with the law, including international humanitarian and human rights treaties aimed at protecting children. A simple answer, difficult to implement.

‘[S]uggestions that cyber means and methods of warfare exist in an extra-normative space beyond the reach of IHL are completely counter-normative.’

Michael N. Schmitt, contributing a post to a series on “International Humanitarian Law & New Technologies” sponsored at Intercross, the blog of the International Committee of the Red Cross. Schmitt, who heads the U.S. Naval War College International Law Department and is a Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence, is among the experts who maintain that Intercross ID logo_0international humanitarian law enjoys what he calls “inherent adaptability”; therefore, consideration of what uses of new technology are lawful ought to occur within the frame of that body of law. It’s the stance he took on release of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), about which I previously posted, and to which he refers in his Intercross post. Schmitt does not argue that IHL is static. Rather, he predicts that some legal concepts may be “reinterpreted”; for instance, what constitutes an “attack” within cyberspace. What I’ve titled “human-free weapons” – that is, autonomous or robotic weapons, able to make targeting decisions without human intervention – pose particular interpretive challenges. Schmitt notes others’ posts in the series and “join[s] the ICRC in calling for further informed examination of the issues the systems arise.”

‘A State Party shall not authorize any transfer of conventional arms …, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva salwConventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.’

So mandates Article 2(3) of the draft Arms Trade Treaty that delegates almost approved this week. The treaty would target trafficking in “conventional arms,” described to include a host of heavy weaponry (battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers) and ammunition, as well as small arms and light weapons. That last category’s a primary cause of the attacks on civilians described in the quoted provision. (credit for photo of small arms being destroyed) This provision, which was inserted in the course of this month’s negotiating conference in New York, thus would place, on countries consenting to it, a significant new limitation on global weapons sales.

Whether such a limitation ever will take effect remains to be seen.

In accordance with a request of the United States made back in 2009, approval of the text could come only by consensus.  By Thursday of last week, the United States, which had balked at prior texts in the past, got on board – but then Iran, Syria, and North Korea jumped off. As did many others (online statements included laments from Britain, France, Kenya, Pakistan, and Switzerland), the top U.S. delegate expressed regret at this turn of events:

‘Such a treaty would promote global security, it would advance important humanitarian objectives, and it would affirm the legitimacy of the international trade in conventional arms. Over two weeks of hard negotiations we reached a text that was meaningful, that was implementable, a text that did not touch in any way upon the Constitutional rights of American citizens, a text that the United States could support. We look forward to this text being adopted by the United Nations General Assembly in the very near future.’

A General Assembly vote on the question reportedly could come as early as next week. Should that happen, pursuant to Article 22(1), entry into force would await joinder by 50 states.

attConfLogoA new effort at multilateral regulation of firearms is set to begin Monday at U.N. headquarters in New York. The name for the 10-day diplomatic meeting – Final Conference – expresses hopes for a positive result. That was not the case in July 2012, when the resistance of the United States sidetracked negotiations. Under review will be a draft Arms Trade Treaty, Article 1 of which sets forth 2 goals:

► ‘[E]stablish the highest possible common standards for regulating or improving the regulation of the international trade in conventional arms’
► ‘[P]revent, combat and eradicate the illicit trade in conventional arms and their diversion to the illicit market or for unauthorized end use’

In so doing, treaty supporters hope to:

► ‘Contribute to international and regional peace, security and stability,’
► ‘Prevent the international trade in conventional arms from contributing to human suffering,’ and
► ‘Promote cooperation, transparency and responsibility of States Parties in the trade in conventional arms…’

The term “conventional arms” is defined in Article 2 to include many categories of weapons that all would agree ought to be subjected to close regulation: battle tanks and armored combat vehicles, large-caliber artillery, combat aircraft and attack helicopters, warships, missiles and missile launchers. It also includes one category of arms –  “small arms and light weapons” – which the U.N. Office on Disarmament Affairs blames for much suffering:

‘The majority of conflict deaths are caused by the use of small arms, and civilian populations bear the brunt of armed conflict more than ever. Also, small arms are the dominant tools of criminal violence. The rate of firearms-related homicides in post-conflict societies often outnumbers battlefield deaths. These weapons are also linked to the increasing number of killings of UN employees and peacekeepers …
‘Small arms facilitate a vast spectrum of human rights violations, including killing, maiming, rape and other forms of sexual violence, enforced disappearance, torture, and forced recruitment of children by armed groups. More human rights abuses are committed with small arms than with any other weapon. Furthermore, where the use of armed violence becomes a means for resolving grievances and conflicts, legal and peaceful dispute resolution suffers and the rule of law cannot be upheld.’

These contentions are echoed by many human rights organizations; an example is Amnesty International’s focus on how small arms harm girls and women.

The U.N. Office estimates that there are more than 875 million of these weapons, with as many as 8 million more being made each year. At stake is a global and globalized market. “More than 1,000 companies in about 100 countries are involved in some aspect of small arms production,” according to the Office, “with significant producers in around 30 countries.”

The inclusion of small arms and light weapons in the Arms Trade Treaty has raised some concerns in the United States,  notwithstanding the treaty’s emphasis on illegal trade and guarantees of noninterference in domestic matters. In the face of such concerns, a July 2012 White Paper by the American Bar Association maintained that the treaty would not impinge on rights guaranteed by the U.S. Constitution. A position statement by the U.S. Department of State – one that does not mention the Final Conference – may be found here.

Arizona State Law Professor Aaron Fellmeth wrote in October that National Rifle Association lobbying seemed to likely to impede U.S. ratification even if the treaty were to be adopted. Time will tell if post-Newtown sensibilities have changed that calculus.