Slightly Random Musings

CentreForum Trident Report

2012-03-10T17:37:00.000Z

(Shameless self promotion, I know... deal with it!)

Forgive my lack of posting - I've been totally consumed by getting CentreForum Trident paper finished. And now it is - you can get it here - and there's been lots of interesting media coverage. I'm deeply indebted to many people - the acknowledgements are there for a reason - but the one I most liked was from the UK communist Morning Star; only the comrades know the truth. (NB Irony Alert!) We also made the wonderful ArmsControlWonk - with thanks to Dr. Jeffrey Lewis.

Normal service will be shortly be resumed...

Labour Does Defence Cuts(ish): Part Two

2012-02-05T16:07:00.002Z

(Ainsworth addresses the Commons in December 2009 on defence cuts. He might have said "I've done some sums, and they don't add up. But don't worry, I'm not going to be here after the election to worry about that.")

Apologies for the lack of postings from here at SRM HQ - I've been very busy and, as they say, all will be revealed shortly. Thus, it is with apologies that this follow up to part one has been delayed - but here we are now.

The figures are stark: the UK MoD is broke, and despite the cuts from the 2010 Strategic Defence and Security Review (SDSR) that we've discussed here and here before, there are reasonable grounds to assume that there are more cuts to come. Indeed, whilst Liam Fox told Parliament on 18 July 2011 that the defence budget was "broadly in balance", it must be assumed that "broadly in balance" actually means "not actually in balance, so more cuts are required".

But this is not news. Indeed, prior to the 2010 election, Labour belated recognized that they'd blown the budget. This was made powerfully clear in Bernard Gray's report, which famously described the budget as undeliverable under any likely future budget. This was demonstrated in his chart on p. 94:

(Not ever going to work)

Moreover, Shadow Chancellor Ed Balls has made clear that Labour will accept the Coalition's cuts, meaning that Jim Murphy and his team need to meet the same challenge as the Government - find £74bn over ten years to balance the defence budget. And that will mean a proper discussion of what the UK is going to do with it's place in the world, setting the Government's aspirations, and then providing the budget to cover them.

Jim Murphy, over to you....

Anglican Human Rights

2012-01-28T23:10:00.001Z

(His Grace Archbishop Dr. John Sentamu, Archbishop of York)

Nothing divides the Anglican Church like homosexuality. This is hardly news, but the genius of Anglicanism has always been that it is most opposed to intolerance, rather than letting rip with hellfire, brimstone and heaven only knows what else. So when Archbishops - as John Sentamu of York has - start lecturing politicians on gay marriage, I get worried in a hurry.

I wade into this quagmire with reticence; the challenge is that the Anglicans have been going at this issue for years, and that there is little or nothing like a debate - instead there's lots of shouting from the anti-homosexuality side, and only a little less from the pro-human rights side.

I deplore Sentamu's comments. And I hope he is slapped down by Rowan Williams - and David Cameron - quickly. The challenge that Sentamu's reported position holds is that it makes it ok for homosexuals to be discriminated against: imagine what the outcry would have been if he had held that Christian marriage was only acceptable between whites. Sorry, universal human rights are universal - and that includes homosexual couples. Christian love is not limited in this way.

Complementarity

2012-01-23T18:46:00.000Z

This week is madness here at SRM HQ. However, ICC complementarity is a very live issue at the moment, especially as it pertains to Saif al-Islam al-Gaddafi.

In the spirit of not reinventing the wheel, here's an excellent piece on the current state of play from IntLawGrrls.

Those crazy Victorians

2012-01-21T00:02:00.000Z

(Well, it can be a long walk. And it does rain. Quite a lot.)

In Britain, the majority of railways were built in the three "railway manias" - most famously 1844-46 but also again in the 1850s and 1870s - when something like the internet bubble happened for roughly the same reason; a disruptive technology that made the flow of information and services easier than ever before. Some of the routes promoted were outright fraudulent, others were directly competitive (there was no obvious reason to have two mainlines from London to Birmingham or three from London - Manchester), and until the 1923 grouping there were a plethora of lines - more than one hundred survived to join the Great Western, London Midland & Scottish, London North Eastern and Southern Railways.

But this very national network - reaching into odd corners (Laxfield), hopelessly romantic names (Ashby Magna), high peaks (Bakewell) and the mountain fastnesses (Cwm Prysor) and some - like Steele Road - that served nothing but the railway itself - would be cut back by Beeching and the failure of network economics. But some of the strangest bits of Victorian over-enthusiasm for railways survive. And the Snowdon Mountain Railway is one of the oddest.

So mass tourism came to North Wales in the 1880s and 1890s. And Snowdon (snow hill in Anglo-Saxon) or Yr Wyddfa (The Tumulus in Welsh) Wales' highest peak, stood proudly at 3,560ft over the lake at Llanberis, along with a number of paths to the top. But it's a steep walk, and besides, railways (in this case imported from Switzerland) could do almost anything - in the case, literally climb mountains. And thus was born the SMR.

It is steep.

(The lake at the top of the picture is the bottom of the railway.)

And since the opening, little steam engines (and in more recent years, some diesels) have pushed one or two coaches up the mountain. And continue to do so....

Bravo!

But the walk is also lovely, and if you come up the other side of the mountain, you can see this:

(And then you get to see steam trains at the top, and have a nice lunch in the new cafe on top too. Bonus!)

Torture is Wrong

2012-01-18T00:23:00.001Z

(Enough to give God a bad name)

Briefly, Omar Othman, known as Abu Qatada, has a long track record for advocating the use of reasonably indiscriminate violence in support of political Islam. Terrorism, in other words. Today the European Court of Human Rights (ECtHR) ruled that the UK couldn't extradite him to Jordan. But this is not the "liberal courts are coddling terrorists" mantra beloved of the Daily Mail and the other bits of the right wing press.

Rather, the Court seems to have ruled on the narrow issue that the Jordanian prosecution of Mr. Othman was likely to be based on evidence extracted under torture, therefore violating the right to a fair trial. Rightly so. But the ECtHR also accepted that the UK could rely on the diplomatic assurances provided by Jordan that it wouldn't torture Mr. Othman, and therefore in future the UK could do so again to States with questionable human rights record.

We shall see. All very interesting, and I expect Mr. Othman to face trial at some point. But after waiting for nearly a decade, it could be a while.

Labour Does Defence Cuts(ish): Part One

2012-01-11T18:19:00.001Z

(MoD Men: Robertson (891), Hoon (2034), Reid (364), Browne (882), Hutton (245), Ainsworth(340)*)

Under normal circumstances, political U-turns are mocked by political opponents and denied by the U-turnee. Occasionally, U-turns are emblematic of a new leaf - classically, Labour's repudiation of Clause IV under Blair in 1994 - and last week we saw something unusual; a Labour shadow Minister in favour of spending cuts, and in particular, defence cuts. Step forward, Jim Murphy MP.

I'll deal with the specifics of the proposed Labour cuts in a future post - suffice to say, they are a long way from both a mea culpa for the damage of the unfunded promises of the Labour 1997-2010 years, but they are a start for Labour to make a credible economic policy.

But in reviewing Labour's record, I thought it would be fun to look at how long Labour's Secretaries of State for Defence were actually in office, and compare that with their Tory predecessors under Margaret Thatcher and John Major - ie, back to 1979. The point is that there is such a steep learning curve as a Secretary of State - especially for those with little or no background in defence - that the first six months or so Ministers will be learning as much as doing, with being really effective from about six months in.

So how did they do?

Two things are striking: first, Geoff Hoon's five-and-a-half years in office was remarkably - and abnormally - long. It wasn't a complete triumph, as Hoon presided over the mini Defence Review known as the "New Chapter" to the 1998 SDSR post the terrorist attacks of 9/11 - and then allowed the UK's forces to become completely over-stretched in Iraq and Afghanistan, whilst presiding over the disastrous procurement performance that would come to dominate the MoD's budget (and with it, everything else.)

Second, once you take Hoon out of the equation, Labour Defence Secretaries served for an average of 65 weeks - suggesting that they may have had about six months cognizant of the issues to drive the change required. (John Reid is probably the honourable exception as he had a good defence background in opposition, but he was still in post for only a year, meaning that he wasn't about long enough to deliver change.) Worse, as the budgets reached breaking point under Gordon Brown's premiership, he was keeping his Defence Secretaries in place for about half the historical average - as well in Bob Ainsworth having picked a singularly unimpressive Secretary of State. More damningly, as Ainsworth was the only one who was promoted from inside MoD, he should have had the best handle on the Departmental challenges, but he was probably the poorest of the lot.

So what does this mean? Possibly not much, but it does point to the comparative lack of importance and oversight that the two Labour governments gave to ministerial stability after George Robertson got sent off to run NATO. And that lack of consistent leadership from the top bears much of the responsibility for the mess that MoD was in by the 2010 Election.

*Number of days in office.

South African Mancunian retired to Gwynedd

2012-01-07T00:14:00.000Z

(Rain in Wales? Maybe occasionally.)

Here at SRM HQ there is a soft spot for steam trains, hence the "Occasional Steam Train" series.

Today - in honour of Mr. Joe Fuller's birthday, we look at some of the most powerful 2ft gauge steam engines ever built - the South African NGG16 Garratts. A Garratt is a type of steam engine in which a larger-than-otherwise-possible boiler is carried on a paid of articulated power units, to make a smooth-riding and extremely powerful locomotive for its size. Though there were some standard gauge examples in the UK, including 33 on the LMS and the LNER's unique U1, Britain's most powerful steam locomotive, Garratts were synonymous with 3' 6" (Cape Gauge) systems in southern Africa, (though they also appeared in Australia, too), where despite being "narrow guage" were often larger than contemporary British practice on standard gauge.

But what concerns us here is 2' gauge super-power. Weighing in at around 60 tons and delivering over 21,000lb tractive effort, the NGG16s, behemoths of the narrow gauge, are more than twice the 24t weight of the iconic Ffestiniog Railway Double Fairlies like Livingston Thompson which produced less than 9,000lb tractive effort.

(Not a Garratt - a Double Fairlie)

And after retirement from South Africa, some of these Manchester built Beyer-Peacock Garratts (known worldwide as Beyer-Garratts) were repatriated as the ideal power for the rebuilt Welsh Highland.

Why are these Garratts so important? Well partly due to their size, they provide the capability to run profitable trains over the fabulous Welsh Highland Railway, something that the original line torn up in the 1940s never achieved. The WHR features a 1-in-40 ascent from the lovely village of Beddgelert to the base of Snowdon and then across farmland to Caernarfon Castle. It also runs through the breathtaking Aberglaslyn Pass, below:

Interestingly, one of those on the WHR is number 143, the last Beyer-Garratt produced, so in sharing the line with the first, K1, Wales now has the Alpha and Omega of these characterful engines that did so much to open up narrow gauge lines across the British Commonwealth in the first half of the 20th century.

(Last Beyer-Garratt ever... No 143 at Rydd Ddu)

So let's celebrate these returnees, and hope that they will continue to trundle visitors through the Snowdonia National Park for generations to come. Bravo!

(Number 87, one of the Belgian-built engines at Rydd Ddu - pronounced Writh-Dee, more or less.)

Happy Birthday Joe!

Pointless Posturing Update

2012-01-06T00:36:00.000Z

(Roosevelt said something about walking softly and carrying a big stick. Indeed. Old, but gotta love F-14s)

The pointless posturing of our title is by the Iranian regime. So it seems the Iranians backed down, and then having backed down, told the US Navy that it couldn't operate it's aircraft carriers in the Persian Gulf (or, if you want to annoy the Iranians, the Arabian Gulf - isn't language funny.)

The US Navy gave Iran a stern ignoring. Quelle surprise.

And it will carry on until the Iranians need another external mini-crisis for internal political pressures. At least President Obama doesn't have to (although the GOP do, it seems).

Good going USN.

As ever, read the instruction manual....

2012-01-04T06:41:00.001Z

When they built this:

(HMS Resolution, the UK's first SSBN arriving at Faslane in 1967 for the first time)

The good people involved wrote a book "The Nassau Connection" explaining how they did it - or at least how they managed the project.

(A short book. Sadly out of print.)

It's a short book, at just over 100 pages in a sparse civil service style, and is very interesting. So if you want to build something to replace this:

(HMS Vanguard, the first of Trident submarines arrives in 1994)

You'd do well to read this most interesting little book. Equally, if you think this is a silly idea (or even a very silly idea) then there's plenty of food for thought in this book, too. I'll post a fuller review shortly.

It's Morning in Arabia

2012-01-02T17:33:00.000Z

(The Gold Standard for political advertising, dammit. No wonder Mondale/Ferraro got stuffed.)

(Without apologies to the Gipper.)

Firstly, Happy 2012!

It's hard to believe that less than 12 months ago, I posted a tongue-in-cheek piece about autocrats' egomania after the thunderclap of Tunisia's Jasmine Revolution. Yet less than a year on, brave people are protesting (and dying) in Syria, three dictators have gone, with Tunisia, Libya Egypt and Yemen all standing at the dawn of a new and vibrant cacophony of politics and social change, with only Bahrain's regime looking like it has successfully suppressed popular anger. But it is unlikely to end here, as the siren calls of fresh air continue to echo around the Arab world, with unpredictable, but likely positive long-term effects. And crucially, an acceptance in the West that we can't reverse this tide even if we wanted to, so it's much better to be on the right side of history rather than having history's wave crash over you.

Just before Christmas, Chatham House published a really interesting paper on Saudi Arabia's medium term economic and fiscal position which is fascinating (and for Saudis facing a demographic explosion, terrifying). Accountability is going to be key in making the choices that such a fiscal transition will require, so pressure for change will only increase. Interesting times ahead!

Umm, not the 1st of April yet...

2011-12-30T00:34:00.001Z

(We are here. Infidels are here, here and here. Apostates over there. Good. Points? Questions?)

Those kray-zee Iranians.

Just when Christmas television looked like getting everyone down, up popped the comedy act that is North Korea* to entertain us with their choreographed grief (though believe me, if I were living in Pyongyang, I'd have cried and wailed with the best of them just in case someone decided that I had been insufficiently upset and felt that a little reeducation was in order.)

Not to be outdone by their former colleagues in the Axis-of-Evil, Iranian Admiral Habibollah Sayyari says it would be "very easy" for his navy to shut down the Strait of Hormuz (SoH) if the nasty west (and especially the nasty EU led by the confounded British, whose hand is behind everything bad in the Islamic Republic, I'm reliably informed) has the temerity to impose oil sanctions on Iran for its repeated violations of the NPT, which the IAEA noted in their 18 Nov 11 Resolution. And here's a nice piece from the good people at APM's Marketplace - they do a great daily podcast, too.

Excellent, certainly a move that's all about the spirit of the season, and likely to bring everyone together and allow us all to get along better and all of that.

But is it feasible?

(Ah. Rather narrow then.)

The strait is about 34nm across at it's narrowest point, and more importantly, the commercial traffic goes through the two 2nm corridors marked on this helpful map. And given the major Iranian naval base at Bandar Abbas is nice and close, in principle Iran's two naval arms - IRIN and the IRGC(N) - could make a stab at "closing" the SoH if they so chose. However, this overlooks a couple of things.

First, legality. Such a blockade would be illegal (states have the right to peacefully sail through straits worldwide) - something established in customary international law and in the 1948 ICJ Judgement in the Corfu Channel case - unless it was an act of war. An Iranian declaration of war against the rest of the world seems somewhat unlikely, and so in the absence of a UNSCR allowing for Iran to close the SoH (inconceivable), then the Iranians would be acting illegally.

Second, actual capability. Does Iran really want to take on the US Navy and her allies in a shooting match in the SoH whether on the water or from shore based missile and artillery batteries (or both?)? I can't see it - the Iranians could get lucky and cause some damage to naval vessels escorting oil tankers or patrolling the Straits - but the risk of retaliation sinking the rest of your fleet (or worse, starting a broader war) is such that you'd have to be nuts to try it. And this blog (at least) doesn't think that the Iranian regime irrational - more than anything else, it is solidly focused on it's own survival.

So, nothing to see here - let's all get back to the Christmas specials on telly. But not a clever move by the Iranians, and I suspect, not one that they're going to enact, irrespective of their domestic posturing.

Finally, in the spirit of goodwill to all men, in the unlikely event that this does kick off, please don't ask the Royal Navy how many spare ships it has to send out to help out in the SoH. You may get an answer similar to asking the RAF how many maritime patrol aircraft they can quickly send. Seen from here, the choices made in SDSR 2010 are looking less clever by the month.

*As long as you don't live in it or near it, clearly.

UK Defence Futures

2011-12-28T22:15:00.000Z

(FV 107 / Scimitar / CVR(T) Mk. 2 in Afghanistan: the first of six replacement studies started in the early '80s.

Several hundred million pounds later, the UK has actually delivered um, no vehicles)

Few commentators on UK Defence are as well informed - or sadly, less well known outside of the narrow confines of defence spotterdom - than Francis Tusa, editor of the Defence Analysis newsletter. So it was with great interest that I heard that Mr Tusa had a programme on Defence Procurement on BBC Radio 4 - well worth a listen.

Much on "The Conspiracy of Optimism"; the fact is that the UK has been trying to get a quart into a pint pot, mostly by underestimating the costs of the equipment at the beginning. Essentially, very few equipment programmes are ever cancelled, and as a result if you can get it into the MoD Equipment Programme (EP) then the cost rises will simply be absorbed at the end of the process. (NB to the defence industrialists whining about everything - BAE Systems, that's you amongst others - is just ridiculous: the MoD is not there as a industrial policy - it is there to deliver combat effect in support of foreign policy goals at a time and place of the Government's choosing.)

(Lots of bits. From lots of Constituencies. And not yet assembled....)

Except that costs are generally not absorbed or mitigated, as the costs are allowed to rise and the stock MoD answer is to S L O W things down. Right down. Very S L O W L Y indeed (but remember, nothing gets cancelled, right?) This drives the costs through the roof, but makes it affordable in the next 12 months. How much more expensive? Well, effectively doubling the cost of the Carrier programme for instance, leaving the UK in the absurd position of having one and a bit aircraft carriers with no actual aircraft to fly off them. Well done.

So, Bernard Gray (the new broom at Defence Equipment and Support (DE&S)) wants new skills and expertise into the procurement game. Good. But the biggest challenge is surely that irrespective of the MoD getting it's house in order (which is a good idea, but is unlikely in the short-term - and the cultural change required is enormous), it is just as much about the UK government deciding what it wants to achieve internationally - and then paying for it.

Very, very, difficult choices in 2012. Happy New Year, MoD.

Baby Scots

2011-12-28T00:45:00.001Z

(An LMS "Patriot" 4-6-0; 45500 Patriot herself, in fact.)

We do do occasional steam trains here at SRM; it's an important element balancing the law, defence and foreign affairs elements that is our usual fare. So here in what turns out to be my 100th post since relaunching the blog back in July 2010, we're back to steam engines. And weirdly, this features a class of locomotive that I've never warmed to from a railway that I always thought was rather dull.

So what's this all about?

It's about the dedication of passionate enthusiasm in the face of any kind of rational assessment of that which is dourly sensible. All of the Patriot-class were scrapped in the early 1960s, and a small group based at the Llangollen Railway are building one from scratch with assorted odds and sods that did survive from the end of steam (a tender, some buffers etc). The new engine will be named "The Unknown Warrior" and will be the UK's national memorial engine, perpetuating the old railway tradition of having an engine which recognised the sacrifices of staff and passengers in wartime.

All jolly good. She should look like the painting below when she's finished - hopefully in early 2018 for the centenary of the WW I Armistice.

And things seem to be going pretty well. Well done to them!

Winning the Revolution

2011-12-24T21:58:00.000Z

(Libyan celebrate in Martyr's Square)

Merry Christmas to all.

And in Libya, happy Independence Day, being celebrated for the first time since the Gaddafi revolution of 1 September 1969 - under Gaddafi, only his revolution was deemed worthy of celebrating.

But what is also interesting today is that the Libyan Revolution - as well as the other revolutions of the "Arab Spring" - continue long after the end of the previous regime. And arguably, the continuing work on constitutions and accountability mechanisms is going to be the thing that secures the gains already made through the emergence of civil society. This is why the call today for increased accountability from the Libyan National Transitional Council by Lawyers for Justice in Libya is both welcome and timely: civil society does need to play its role in ensuring there is accountability.

So, happy birthday Libya, and hearty applause to LFJL for ensuring that the peace is won as well.

An outbreak of common sense?

2011-12-22T09:33:00.001Z

("Hi, I'm back. Can we all be friends again? Hello? Angela? Nicky? Hello?")

A very interesting article from The Sun. As many of you know, The Sun isn't my natural paper of choice, but if the report is true that David Cameron is seriously looking at what they hilariously describe as a "EU-turn" (oh what witty banter they come up with in Wapping!), then thank goodness for that.

It won't immediately overcome the impact of the non-veto at the Council, and as The Sun correctly notes,

"If the PM did sign a new treaty it would spark fury from Tory Eurosceptic MPs".

Indeed, because as I argued at the time, unless Cameron wants to put the UK irreparably on the exit ramp from the EU, this confrontation needs to happen. It also lays bare the fact that that this row is now (and probably always was) largely about internal Tory party party management, not about the substance of the new institutional arrangements - which is doubly damaging for Cameron who persistently claimed (in the face of the evidence) that he was "doing what was right for Britain".

So, let's hope that the PM can find a face saving route to climb down over Christmas and face down the Eurosceptics / Europhobes in his own backbenches. The sad truth is that if he doesn't do it now, then he'll either be in hock to them for the rest of his time in charge (shades of John Major and the "Maastricht Rebels") or he'll have to face them down later at much higher political cost. Unless, of course, he wants to leave the EU (which I'm sure he doesn't).

Attaboy, Dave! Up and at them, and all of that.

History's curious juxtapositions

2011-12-21T00:33:00.000Z

(One took Frost's Road Not Taken. That'd be the bloke on the left, in case you were confused.)

History sometimes has a sense of humour.

In one of those uncanny historical parallels, two children of war and communism who came to lead - and define - their countries died this past weekend. One will be remembered for entrenching a Cold War divide with an illicit nuclear programme, the other for presiding over the break up of the country he had done more than anyone else to liberate from the Cold War. By the end, in everything other than the temporal proximities of their deaths, the lives and reputations of Vaclav Havel and Kim Jong-il could not be more different.

I celebrate Havel not just as the sometimes grumpy and irascible philosopher king of Czechoslovakia - though this would be more than enough - but also with a profound gratitude for changing the way I saw politics and the responsibility of the citizen when I read The Power of the Powerless at Middlebury. A good and madly moving book under any circumstances, it was a profoundly brave book to have edited in 1985 with the Czech secret police (StB) sniffing about for anti-communism. I'm looking forward to re-reading it over the Christmas break.

(Awesome. Go and read it.)

Kim Jong-il was just a tyrannical criminal who apparently ate lobster and drank cognac whilst 6% of his population starved to death in the 1990s, more than a million were political prisoners in labor camps, and the remainder of his population were real and mental prisoners in the collective punishment that is laughably called the Democratic People's Republic of Korea. He was also the world's most accomplished golf cheat, it now turns out. Or just possibly like the rest of the Hermit Kingdom, it was merely lying to himself and the rest of us - in between kidnapping film-makers to make socialist remakes of Godzilla. Frankly, in an irony that Kim Jong-il as a film buff may have appreciated, he was such an egregious bad-guy, that if we'd have seen it scripted in a movie it would've completely lacked credibility. Kim did like looking at things, however; fortunately, so does his son.

So, this monstrous criminal dies in his private train without any judicial intervention. And just like that, history steps in and provides a beautiful juxtaposition of two forms of leadership and moral courage.

RIP, President Havel.

Eurodebacle, continued.

2011-12-20T07:21:00.001Z

(One view. Helpfully unencumbered by any actual facts, of course.)

In haste - an interesting take that I'd missed from the BBC's Mark Urban. The main point is that UK seems to have had a negotiation fiasco - the idea of bouncing the rest of the EU into something unrelated to saving the euro at a day's notice was always going to be difficult, and in fact it was a shambles. Fortunately, the UK is walking back on this at this point.

More SDSR fallout...

2011-12-19T00:28:00.001Z

("Minister, I'd like to drop this bomb on Libya this afternoon if we can afford it..."
"Dunno, let me get back to you.")

Briefly, those disreputable lefties at the Guardian have come up with a scoop, with an authentic-looking paper on cutting senior officers and civil servants in the UK Ministry of Defence. Naturally, the MoD are refusing to comment on leaks (which is sensible, and not just because there have recently been times when arguably they wouldn't have done anything else), but the numbers are remarkable.

Not, I hasten to add, because we didn't already know that there were lots more senior officers than the UK's force size would suggest, nor because we weren't all too clear that the MoD had a largely unreformed management structure, in which classic pyramids abound (if I'm a 1-star officer, then I must have one or more Captain / Colonel / Group Captains working for me, who in turn need the full array of Lieutenant Commanders / Majors / Squadron Leaders working for them who in turn etc etc).

No, on a first pass, the most notable factoid (assuming, as seems likely, this leak is real) is that the numbers of senior officers really grew after the end of the Cold War in 1990. Not sure yet whether this is absolute numbers or merely as a proportion of the forces - I'll get back to this later in the week.

In the meantime, I'll leave you with the ever-prescient words of Bremner, Bird and Fortune:

(Well, yes...)

Edit: updates here and here.

A week on from the Eurodebacle

2011-12-15T22:40:00.000Z

(Ah, it was all so much easier back then...)

Ok, so last weekend I was very annoyed about the "Ready, Fire, Aim" approach to EU negotiation by David Cameron; and it didn't get any better by Monday. According to the FT, the cunning plan seems to have been the bright idea of Sir Jon Cunliffe, the ex-Treasury incoming head of UKREP. At the time, I was musing about how this could be unwound, by getting Cameron to amend his current course by approximately 179 degrees. After the PM's Commons statement on Monday, someone (I'm assuming Nick Clegg) has been on the phone to the rest of Europe trying to patch things up.

And whoever this someone is, they've had some early success. The good news is that Britain has been offered "observer" status at the EU-26 talks, and that Germany's Chancellor Merkel's comments that she wants the UK in the EU. This, along with the realization that the one thing Cameron has failed to actually protect was the financial services sector (because most of the financial regulation is still under QMV at 27) - ironic, given this was the rationale for the veto-that-wasn't last week - means that the 179 degree course correction is on, slowly.

What the Tory Eurosceptics/phobes like Bill Cash MP will make of this is not likely to be pleasant reading in No. 10. But in defending the national interest, Cameron will ultimately have to face down his own right wing - which could be great fun to watch, but will continue to irritate the Coalition.

We shall see.

Breaking Up is hard to do...

2011-12-15T20:09:00.000Z

(International Law doesn't require Neil Sedaka, but why not...)

In 2011 the world's map has changed. A surprising amount, in fact. 2011 saw the emergence of South Sudan onto the world stage, the failure of Palestine to be accepted to UN Membership - though Palestine is now a UNESCO member - and lots of unhappy (but now largely frozen) conflicts rumbling on (e.g. Balochistan, Kurdistan, West Papua, Puntland, Somaliland, Transnistria, Tibet, and East Turkestan, to name but a few). In other words, the international system is anything but static; the problem is that our international legal system makes it quite difficult.

Given that finding a route out of these otherwise intractable conflicts, this constitutes a problem. A major problem, in fact.

(Fwags required. Honestly!)

But, I hear you cry - "Tobbes, so what? This stuff has been going on for years. And?"

And that's fine. There's clearly more to this independence business than designing a flag and starting a pro-independence party, with the option of having a small war (or indeed a large one) to get your people's freedom. But the problems are significant:

     - How does the outside world decide who to back?
     - What is the territory that needs to be "liberated"?
     - What role is there for democracy?
     - Is a simple majority enough?
     - Who gets to vote?
     - What guarantees are in place for the minorities that are likely to remain in any secession?*
   - How are these enforced?
     - Ultimately, What is "Justice"?

The questions go on and on.

Which is good, as ideally I'd like to do some PhD work on this at some point. Thoughts, anyone?

(But it does work, occasionally.)

*We're assuming here that mass population movements are no longer being contemplated - Turkey / Greece in 1922/23 and India / Pakistan in 1947 are experiments that don't need repeating.

Assange and Wikileaks are "Enemy Combatants"

2011-12-12T07:17:00.000Z

(Enemy combatants? Sure, all over the place!)

Newton Leroy Gingrich, former Speaker of the US House of Representatives, is notable for making incendiary comments on a whole range of policy issues. His recent comments on Palestinians as an "invented people" were outrageous enough, (and I was planning on writing about this at some point, but David Cameron and the EU got in the way), but his reported remarks this morning that Wikileaks' Julian Assange is an "enemy combatant" is breathtaking.

This blog has been critical of Wikileaks in the past; Assange in my view has been utterly irresponsible in releasing unredacted US diplomatic traffic - this always felt more about him than about open government. However, Gingrich has taken this to a whole new level: consider the implications of his actual statement. If Gingrich is correct, then:

- Assange can be legitimately targeted by US forces.

- Freedom of speech is where?

Fortunately, it's safe to say that Gingrich is wrong. It's not at all clear what his legal basis for this is - GC III, AP I or AP II? Gingrich could potentially make the case that the Assange was making a material contribution to US enemy action by releasing the US State Department archive that was leaked to him, allegedly by US Army Pvt Bradley Manning. In doing so, you could argue that Assange was taking a direct participation in hostilities, and therefore was targetable.

But I don't see it. Indeed, the reverse should be the case - freedom of expression is protected in Article 19 of the UDHR, amongst other places. Looks like Newt shooting from the hip, as usual.

European Council Debacle Part Deux

2011-12-11T21:42:00.001Z

(Yep, quite a lot to ponder there, Dave...)

48 hours on, does David Cameron's position look any better / more sensible / vaugely explicable?

In a word, no.

(In fact, in several words, NO, absolutely NOT.)

It's increasingly clear that this is basically a screw up, albeit on a previously unknown scale. There's coverage everywhere, but Will Hutton's piece is excellent, and it's hard to see how things are going to get any better soon. I can only hope against hope that the financial services sector make it crystal clear that this isn't remotely helpful to them, and that the worst possible position is for the UK not to be in the room making sensible suggestions about evidence-based policy making in this area, and that as a result, the UK needs to swallow it's pride and get back in there.

A difficult U-turn. But an essential one.

And no, I don't see the Coalition breaking up yet. But a bad weekend for that, too.

Cameron? Really? Why didn't Clegg stop him?

2011-12-10T09:02:00.001Z

(Dave: Fail. Epic Fail.)

I don't normally blog here on European issues, as it's a very specialist element of international law. However, PM Cameron's decision not to participate with the new EU Treaty to help save the euro at 4am on Friday means that I'll break with this rule. It's basically out of a real sense of confusion and disgust that I'm scribbling these lines.

First, Britain hasn't "vetoed" anything. Britain is simply excluded from the Treaty the 26 other states of the EU will conclude, and therefore Britain will have no say (and less influence) on the outcome. Given that this could include single market decisions and financial services regulation - that Cameron was claiming to be protecting - this could rapidly get us to the position that the decisions he was seeking to influence get made without the UK's input, as they're subject to codecision under QMV at 27 but if 26 of the 27 states have already decided, then it's a done deal. UK influence = Zero.

Second, as a result of this, there is no reason for international banks wanting to operate in Europe who can relocate to Frankfurt or Paris not to do so, as Britain's influence in financial services regulation in Europe is now effectively zero - and will be for a decade or more. This will be a slow process, but to the extent to which influence on the regulatory regime helps decide where you base your activities, then this is inevitable.

Third, the outcome of the ECJ case on non-discrimination in the eurozone that the UK has launched will not be known for several years. In the absence of provisional measures, there could be de jure bars as well as the de facto barriers that have existed for those outside the single currency since it's inception. Not good for the single market, and not good for those outside the euro.

(Britain's future EU role?)

Fourth, there is no clarity on the domestic political front that this will silence the Tory "Eurosceptics" - in reality Europhobes - and avoid their demands for a Referendum on the UK's relationship to the rest of the EU. This is a manifestation of Cameron's weakness inside the Tory party - remember he was the guy who couldn't defeat Gordon Brown in the midst of an economic debacle of his opponents making. In essence, any such Referendum would be the In/Out Referendum that UKIP wants and which many pro-Europeans fear, as they expect to lose it, leading to the British withdrawal from the EU. This would be about the most short-sighted economic decision imaginable, but the pro-Europeans bear a heavy share of responsibility - including Blair - for not making the case to Britons for why the EU matters to them - and in their hip pocket.

Fifth, the Europhobes / UKIPers keep banging on about Britain withdrawing from the EU and then having a free-trade agreement with the EU as the EEA states (Iceland, Liechtenstein, Norway) and Switzerland (under different rules) do. Unfortunately, those advocating this position seem to miss the point that the reason that the EEA states get to access the single market is that they have to apply the acquis in all areas except agriculture and fisheries, and have no way of influencing the rules. Given that agriculture and fisheries in the UK makes up less than 2% of the economy, even if this deal were possible, it's a completely absurd notion, as you want to be having a say in making the rules. You do save the net costs of the EU budget, however - say £15bn p.a (less than half the £44bn the UK will spend on debt interest).

Sixth, if EEA Plus is a beguiling chimera, then Cameron has achieved something even worse: paying the net budgetary cost of full EU membership whilst having very little more clout than the other EEA states - the UK has a veto in those areas that the Lisbon Treaty requires unanimity at 27 for, but if the other 26 are going to agree amongst themselves, and a decision doesn't directly contradict existing legislation at EU-27 level, then the UK's vetoes are meaningless. Legal challenges will keep the ECJ happily busy, though.

Seventh, two things about the Council that seem to have been missed in the noise. First, Croatia will join in 2013 - well done Croatia, a small piece of good news. But bad news for the UK as new members will be expected to join the group of 26 - and indeed why would any new members want to join the Brits in second-class EU membership? Second, the Council meeting was designed to save the euro - and it hasn't provided the mechanisms to do so.

Finally, what the hell was Nick Clegg - a former European Commission bureaucrat, former Member of the European Parliament, and leader of our beloved Liberal Democrats, Britain's most pro-European party - doing? Clegg must have been aware of all of the above, and yet he endorsed Cameron's approach. Remarkable, (and remarkably stupid) given that he recognizes the damage that a two-speed Europe poses to the UK.

So what do we make of this? Firstly, it's too early to make definitive predictions... however, here we go:

- The UK shouldn't have walked out - you stay and negotiate until there is a text on the table - which there doesn't appear to have been;

- The coalition will survive as the LibDems face electoral oblivion if they go to the polls now, so coalition politics will struggle on to 2015 (when the LibDems may still face electoral oblivion);

- The new Treaty at 26 is due to be finished by March 2012 - remarkably quickly; but they also need to get it approved, and this should involve referenda in the Netherlands and Ireland that aren't obviously straightforward, so the Treaty may or may not even happen;

- If the international financial services sector based in London make clear to the British Government that they're likely to decamp to the Eurozone then it could be time for the most epic (and humiliating) of U-turns for the UK to rejoin the Treaty at 26 (naturally on much worse terms than if the UK had stayed in in the first place).

A triumph all round then. Let's hope the Europhobes and UKIPers enjoy their "triumph"; schadenfreude-induced-by-payback will suck.

North Bennington Depot

2011-12-02T18:55:00.001Z

(Architectural Napoleon complex: Very large station. Very short platform. Hmm.)

Built in 1880 as a piece of crazy American Victoriana, this is the station in my mother's home town - North Bennington, Vermont. We've seen in once before, back in March this year. As "A Travellers Library" points out, North Bennington is now featured in a new book entitled "America's Great Railroad Stations" - a fitting tribute, I think.

(Looking northbound. I also never understood why the name is facing the driver -
I'd hoped that they'd know where they were...)

The station's survival is also a very American story; not the story of the big corporation, or of the large foundation, but of local benefactors in small towns bringing their community together. The notice board on the station sets out the story eloquently...

The sad thing is that the last passenger trains to North Bennington ran in 1953 or so: it looked something like this from Jim Shaughnessy's 1981 book Rutland Road.

(New York bound in the capable hands of one of the four gorgeous Rutland 90-series 4-8-2s)

So the good news is that the the states of Vermont and New York are conducting a study into returning passenger service to Albany and New York, potentially as soon as 2014-15. Our friends at the Vermont Rail Action Network are doing good work with the VT congressional delegation to get this done. Good!

(Looking south, it somehow reminds me of an aircraft carrier...)

The photo I really want a copy of the station is at Kevin's Sports Pub in North Bennington- it has the view below, but with a very early (probably a '79 or '80) Saab 900 GLs. This is one picture that I'd be happy to replicate- with Amtrak preparing to depart in the background of course...

(Cute. Much cuter with a Saab 900 outside the station, though...)

In a rush, a couple of things...

2011-11-30T22:12:00.001Z

A crazy week at work, but two things to highlight that I will return to.

First, Iceland has recognised Palestine today. The hoopla at the UN in September, followed by Palestine's accession to UNESCO seems long ago now, but here is tangible evidence that the process continues, state-by-state.

Second piece to return to is the failure of the cluster bomb talks. This is very depressing, as it is clearly what is seen to be perfect being the enemy of a ban that would have made a real difference. I'll write more about this at the weekend.

Strategic Thinking on Trident Part II

2011-11-26T00:16:00.001Z

(The Muppets' take on SDSR. As opposed to the take of the muppets who actually did SDSR.)

I was reflecting on Trident with a friend the other day, and unusually, we agreed on something: that the key questions are all about prioritization and the UK's role in the world, with the international legal questions playing a constructive but not definitive role. Indeed, dear reader(s)*, I (sadly) accept that the UK will attempt to finesse any argument on NPT Art VI based on whatever the Government decides it wants to do - though I broadly accept Daniel Joyner's argument on Art VI, and specifically Christine Chinkin's 2005 Opinion on the UK's obligations under the NPT, and that replacing Trident would be inconsistent with the UK's NPT obligations.**

The question my friend and I sparred over was whether there was a case for Trident replacement based on the uncertainty of the world situation, and the possibility / probability of further proliferation of nuclear arms; specifically, should Iran go nuclear, would this prompt Saudi acquisition of nuclear capability as Sir Malcolm Rifkind MP suggests, leading to the nuclearisation of the rest of the Middle East?

(DF-21C. Presumably Saudi ones at least get a different paint scheme.)

I am the first to agree that there is little to be gained in terms of regional security by the proliferation of atomic weapons to Iran and Saudi Arabia. Indeed, as the Atlantic Magazine points out this week, the insecurity of Pakistan's atomic arsenal is perceived as one of the three most serious national security threats to the US; the notion of Saudi buying an atomic capability from Pakistan (or more implausibly, Israel) to mount on its recently acquired Chinese Dong-Feng 21 (CSS-5) MRBMs is plausible and worrying. But the should the expectation that Iranian nuclearisation and Saudi response mean that the UK should go ahead and replace Trident?

In a word, "No".

Why?

The rationale for an independent UK nuclear capability has historically been based around the perceived need for a second-decision making pole in a superpower exchange: bluntly, would - when push came to shove - the US initiate a tactical / strategic nuclear exchange which would result in the destruction of the American homeland to respond to a conventional Warsaw Pact invasion of Western Europe? In case the answer was "no" - or "possibly no" - then the case for a British (and French) nuclear force that could inflict enough damage on the USSR to deter the Soviet Union from trying it on - the fabled "Moscow Criterion" - was intellectually defensible.

However, it was only required because the US could have been subject to nuclear blackmail - something that none countries of concern (Iran, Pakistan, North Korea) have demonstrated. And it is instructive to see how far from this position these countries are: the closest would be North Korea if it were able to deploy a reliable Taepo-Dong 2 ICBM force with which it could hit the US west coast - which is about a million miles from the current position of two public test flights that ended in failure, and no evidence that the required small (under 500kg) nuclear warhead exists in North Korea. If Pakistan can produce the Tamiur ICBM (yet to be tested, much less deployed), the reported 7000km design range does not bring the US within range - see below:

(OPAB is the ICAO code for Abbotabad - Osama bin Laden's last home town.

7000km is the lighter area - excluding all of the USA.)

As such, Tamiur poses no threat to the US and therefore there would be no cost to the US in responding to (the currently - and for the foreseeable future - technically impossible) proposition of a Pakistani nuclear ICBM attack on the UK. Consequently, the fear of nuclear blackmail leading to strategic decoupling of US from NATO from a Tamiur-style ICBM is simply non-existent. (It is accepted that Pakistan could put an atomic weapon in a shipping container and deliver to target on a truck - but unless you're prepared to retaliate on suspicion of the source, Trident is no use to you.)

It is also hard to see that the US/NATO gains much from UK Continuous At-Sea Deterrence (CASD) given the very limited number of warheads that UK Trident now carries. Indeed, the gang over at Arms Control Wonk argue persuasively that even if the US defence cuts from the failure of the Budgetary Super Committee disproportionately fell on the nuclear forces - leading to the removal of a land-based ICBM and cutting SSBN(X) Trident submarine replacement to 10 boats from 12 - then the US could still configure its forces to max-out the New START limits. With 1550 warheads, it's hard to see what difference 48 UK CASD warheads makes to the decision-making of, say, North Korea or Pakistan now or in the next 20 years.

It is on this basis that I'm coming to the position that the UK gains very little in security terms from retaining Trident; it does however cost at least £30bn that could make a significance difference to the UK's conventional forces, which, as we've discussed ad nauseam here is actually what could make a significant difference to the UK - and to NATO and the UK's non-NATO partners. Moreover, until the UK brings the new aircraft carriers into service - preferably with some aircraft to fly off them - UK conventional long-range short-notice conventional force projection is limited to two cruise missile systems: the RN's with BGM-109 Tomahawk from its attack submarines (SSNs) and RAF Tornados with Storm Shadow. Both systems are excellent and provide complementary capabilities. Indeed, HMS ASTUTE recently completed the first of class firings of Tomahawk in the USA.

As good as these systems are, there are clear limitations - Storm Shadow is comparatively short-ranged (reportedly under 300nm) meaning that some credible target sets will require the Tornados to overfly defended territory with attendant greater risks, and will in any event likely require local basing rights for the Tornado launch aircraft. Tomahawk is long range (more than 1000nm) but the RN is suffering from an acute lack of SSNs with the older Swiftsure-class boats now retired, and the first of the Trafalgar-class also struck without the replacement Astute-class SSNs ready to replace them. Moreover, the Trafalgar-class's maximum warload of 30 torpedoes and Tomahawks means that the total number of missiles is actually available against any target set is likely to be less than this. And though stealthy, a submarine can only be in one place at once.

(USS Ohio undergoing SSBN to SSGN conversion)

Decomissioning Trident could address both of these problems. As part of the 1992 START II Treaty, the US Navy would have to reduce its total SSBN fleet to 14. However, instead of scrapping them, it converted four of its 18 Ohio-class SSBNs to carry up to 154 Tomahawks instead of Trident missiles. The result is an impressively balanced, stealthy, strike platform, which provides far more relevant capability to today's - and tomorrow's - conflicts than the Trident missiles formerly carried. Better still for the UK, given that the UK's Vanguard-class SSBNs have the same missile compartment design - though mounting 16 rather than 24 tubes - conversion to Tomahawk carriage should benefit from the considerable work already completed by the US Navy. A full-up Vanguard-class SSGN could carry 106 Tomahawks - more than three times the theoretical maximum number on a Trafalgar-class.

SSGN conversion and already anticipated life-extension to the Vanguard-class would allow the UK to have a deployable, long-range conventional precision strike platform through to the full operational capability of the Queen Elizabeth-class aircraft carriers in the mid-2020s. Food for thought!

* As per ES, it is essential to provide grammatical certainty

** This raises the interesting question of what would happen if the Finance Act which provided funding for Trident were the subject of a Judicial Review....

Strategic Thinking on Trident Part I - Why?

2011-11-21T00:07:00.001Z

(RNAD Coulport - where the UK's nuclear weapons are stored before being mated to Trident missiles)

What should the UK's future policy be on replacing of Trident? And how should the IAEA's November 2011 report on Iran affect the UK's position?

These aren't easy questions, going as they do to the core of what the UK's role in the world is / should be over the next 30 years, and what the British people are prepared to pay for this role. Indeed, if the last 30 years are any guide to the next 30, then UK politicians will find it far too easy to ignore the cost of their global ambitions, and in effect hoping that their unfunded strategic bluff will never get called.

Indeed, this was British policy in the 1920s under the so-called "10-year Rule", which postulated in Professor Vernon Bogdanor's words, "that they should plan on the assumption there would not be a war for the next 10 years because the view was that large armaments led to war - this was only abandoned in 1932." Helpfully, the 10-year rule was also much cheaper than rearmament. And arguably, (Afghanistan aside), the UK's 2010 Strategic Defence and Security Review (SDSR) has in effect attempted to reinstitute the 10-year rule with a strong focus on what it calls "Future Force 2020", in which painful cuts today will, in the words of the RAF PR machine lead to:

"The longer-term vision for the make up of our military – Future Force 2020 – will be secured by this one-per-cent-a-year real terms increase in the planned equipment and equipment support programme."

Except that there is little confidence that the money required is available, given that at the beginning of the SDSR process there was at least a £42bn hole in MoD's procurement finances in the period to 2020. Helpfully, much of the capital spending on the Trident spending would occur just beyond this horizon, and is thus helpfully excluded. Hence, a more realistic assessment of the position is that it is even more unhealthy than this looks.

The time for such a muddled "strategy" - if it ever existed - is well and truly over. Instead, what is required is a careful assessment of the what role the UK wants to play internationally, and how it should go about getting there from here - accepting that "here" is not an optimal starting point. Moreover, given that it will cost at least £25 - £30bn in capital spend between now and 2025, the replacement for Trident has a central role to play in any such discussion - something that Dr. Liam Fox MP as the Secretary of State for Defence at the time of SDSR explicitly overruled by insisting that Trident would be replaced (and implicitly, whatever other cuts were required would be borne to protect the Trident programme.) As we've seen, the required cuts were deep, wide-ranging and rushed: it is therefore of little surprise that in the next decade Britain's conventional forces will become dangerously unbalanced (e.g., an RN capable of deployed a carrier battle group sans aircraft, but only if they stopped doing almost anything else; no fixed-wing maritime patrol assets to support maritime ops; 14 extremely expensive PFI air-refuelling tankers and down to 8 squadrons of fast jets. And this is before we get to the Army...).

So what? And more importantly, so what about Trident?

Well, it's difficult. We'll come to that in Part II. But here's a teaser....

(USS Ohio SSBN-726 undergoing SSGN conversion.

Note the former Trident tubes open behind the sail)

We're back!

2011-11-20T20:45:00.001Z

In the live broadband world, after too long away. (Thanks for not-very-much, BT....)

Anyway, back in January, we looked briefly at the the legal and practical implications of weaponising cyberspace. Given that reciprocity is a key foundation of international law, I was very interested in this short piece from the Guardian today, detailing a possible cyber attack on a US water control facility.

Interesting times!

NPT Article VI

2011-11-09T18:45:00.000Z

(IAEA, guardian and enforcer of the much sinned-against NPT)

Well, the good news is that the trial is over, and normal service is being resumed; the present status flag will move from Vermont, but I expect that it will be back reasonably soon.

As I mentioned a week or so ago, some new work is being kicked off on the British replacement of Trident, with an initial focus on the legal issues surrounding the strange case of the extra comma. Let's pick up the analysis of the Nuclear Non-Proliferation Treaty (NPT) Article VI from where we left off - looking at Daniel Joyner's new book "Interpreting the Nuclear Non-Proliferation Treaty". Joyner's book came in for some reasonably trenchant criticism, which in my view makes it all the more interesting.

It is.

Joyner's argument is beguilingly based on the Vienna Convention on the Law of Treaties (VCLT) - the Treaty that governs how to interpret Treaties. His (altogether unremarkable) conclusion is that a straight reading of the NPT and it's negotiating history is that as a document it takes the form of three pillars - non-proliferation (Articles I, II and III), peaceful use of nuclear energy (Articles IV and V) and disarmament (Article VI). So far, so conventional. What is more radical is the proposition that the NPT was balanced between these pillars, and that Article VI is just as important as Articles I-III. Joyner's most radical work is in his interpretation of what Article VI actually means (it's that pesky comma again).

But that comes later. Joyner's starting point is the nature of the NPT itself - a contractual rather than merely law-making treaty. In this, Joyner comes to the conclusion that it is the contractual nature of the NPT that provides a key insight into its interpretation; that in making the treaty contractual on a range of differing obligations, it becomes clearer that the Nuclear Weapons States (NWS) owe disarmament obligations to the Non-Nuclear Weapons States (NNWS) in return for the NNWS not pursing their own nuclear weapons programmes (and in the process, locking in their strategic disadvantage / inferiority).

Article VI

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effectivemeasures relating to cessation of the nuclear arms race at an early date and to nucleardisarmament, and on a Treaty on general and complete disarmament under strict and effectiveinternational control.

Joyner goes on to make a strong case that Art VI commitments are not, pace the Bush Administration's Christopher Ford, merely a commitment to pursue negotiations on nuclear disarmament, but that the good faith test pushes things on to a requirement to conclude a nuclear disarmament treaty separately to the general and complete disarmament treaty that is also envisaged in the NPT.

This view also takes the state practice of the NWS should - it would appear on the basis of self-interest - to be weighed against that of the NNWS, and largely discounted because of the self-interest inherent in their position. I don't think that it's possible to go this far. An with respect, I don't see how the the ICJ's Advisory Opinion in the 1996 Nuclear Weapons Case from paragraph 99 onwards can conclude that

"... the legal import of that obligation goes beyond that of a mere obligation of conduct ; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith."
Inasmuch as if this was the construction that the drafters had intended, then they could simply have drafted Art VI thus:

Article VI

Each of the Parties to the Treaty agrees to nucleardisarmament, and on a Treaty on general and complete disarmament under strict and effectiveinternational control.

The point is that they didn't. Much better, I think is the 2005 Joint Opinion by Professor Christine Chinkin at LSE and Rabinder Singh QC, formerly of Matrix Chambers, who note in paragraph 69 that

69. The Treaty obligation is thus not to disarm as such, but a positive obligation to pursue in good faith negotiations towards these ends, and to bring them to a conclusion. Good faith is the legal requirement for the process of carrying out of an existing obligation....

leading them to conclude in paragraph 74:

74. Enhancing nuclear weapons systems, possibly without going through parliamentary processes, is, in our view, not conducive to entering into negotiations for disarmament as required by the NPT, article VI and evinces no intention to 'bring to a conclusion negotiations leading to nuclear disarmament in all its aspects'. It is difficult to see how unilateral (or bilateral) action that pre-empts any possibility of an outcome of disarmament can be defined as pursuing negotiations in good faith and to bring them to a conclusion and is, in our view, thereby in violation of the NPT, article VI obligation.

This instinctively feels like the best balance of the difficult negotiating process and subsequent history of the NPT. And it would make a UK Trident replacement a violation of the NPT, and with it a violation of international law.

Interesting times!

Rwanda and the ECtHR

2011-11-01T00:54:00.001Z

As a follow up to my talk with Stephanie Wolfe at Bennington College last Friday night, I was very interested in this post at IntLawGrrls on whether Rwanda is capable of offering a fair trial to Hutus (or former Hutus) accused of serious crimes in the 1994 genocide. Interesting stuff, and well worth a read.

(Corrected link with thanks to Kyle).

Palestine joins UNESCO

2011-10-31T17:18:00.002Z

So, after Palestine's formal application for UN Membership in September, UNESCO has voted to admit Palestine as a full member today. This vote (107-14-52), with 81 positive votes required, has no direct bearing on the UN membership application, though the US threat to withhold their UNESCO assessments (22% in line with the UN assessment scales) is problematic.

More soon.

Dr Saif al-Islam al-Gaddafi and the ICC

2011-10-29T21:21:00.000+01:00

(As the badge says, LSE exists "To know the causes of things" - like who wrote Saif al-Islam's thesis....)

I was asked the other day by a Middlebury undergrad who is writing a thesis on NATO's intervention in Kosovo for proof that international law exists - or is at least effective.* And whilst it is possible to make lots of theoretical arguments, there is nothing like a good practical example to demonstrate that international law has teeth by changing behaviours - most notably of those who would otherwise see themselves as beyond the reach of the law.

Few in 2011 have been as far beyond the reach of the law as Saif al-Islam Gaddafi, especially after his "Rivers of Blood" speech on 21 Feb 11. Yet following military defeat and his indictment by the ICC, it is reported today that he has contacted the ICC through intermediaries to arrange his surrender to the Court. Naturally, the man that the ICC indictment refers to as the "de facto Prime Minister of Libya" protests his innocence, but it is telling that he's attempting to arrange his surrender - though clearly his limited other options and the absence of capital punishment make an ICC trial more attractive than being on the run in Libya.

And as for Saif al-Islam's PhD? Well, the London School of Economics** has referred its authorship to the University of London under the Procedure for Consideration of Allegations of Irregularity in Relation to University of London Awards. LSE now runs itself, but in 2008 when Saif al-Islam was awarded his PhD, it was still granting degrees via the University of London, and it is Senate House that will investigate the situation; a report is due later this year. At least there will be plenty of time for the ICC Registry to work out whether it needs to address its new defendant as "Dr Saif al-Islam" or simply "Mr. Gaddafi"....

*Eoin, I agree this is something of a simplification of your question.

** I loved my time at the LSE, and as painful as it is to see it's name blackened by the ill-judged Libyan connection, the Woolf Report should provide a solid foundation for transparency when it is published.

Birdcages!

2011-10-27T12:11:00.005+01:00

(A Birdcage, SECR-style)

I've been reminded that there have been a lack of steam trains in this blog recently. An oversight. So it was very exciting to see the Bluebell Railway has completed the restoration of SECR "Birdcage" brake 3363, both because of the quality of the reconstruction - restoration seems far too narrow a term for what has been achieved in Sussex:

(3363 as she appeared in 1998 - hence "reconstruction")

So, the "Birdcage" glazed area provides a new vantage point for the important business of looking at steam engines.

With credit to Roger Carpenter for the pictures taken last Saturday, here's what that view looks like:

The locomotive in question is LBSCR Billinton Radial Tank, No. B473:

Enjoy!

Meanwhile, back in Yemen....

2011-10-26T01:25:00.000+01:00

("So which bit of 'I'm still in charge' don't you get?")

2011: what a year for the UN Security Council. First with the passage of UNSCR 1970 and UNSCR 1973, the UN - with the support of the Arab League - authorised sanctions and then the use of force in Libya. Then the stop-and-start element came in with Russia and China vetoing a draft S/2011/612 over (extremely limited) action against Syria, and the moment was less optimistic. However, with the unanimous passage of UNSCR 2014 on 21 October on Yemen, and the direct support to the Gulf Cooperation Council (GCC) initiative that OP4 describes as:

"... inclusive, orderly, and Yemeni-led process of political transition, notes the signing of the Gulf Cooperation Council initiative by some opposition parties and the General People’s Congress, calls on all parties in Yemen to commit themselves to implementation of a political settlement based upon this initiative..."

The rest of UNSCR 2014 is full of sensible stuff about pushing along an implementation of the proposed settlement with President Saleh, but I was very taken with the not-quite-Chapter VII language of PP18:

"Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations, and emphasizing the threats to regional security and stability posed by the deterioration of the situation in Yemen in the absence of a lasting political settlement,"

The UNSC etc etc...

So let's watch it. If Saleh doesn't accept the GCC proposals - which is not uncontroversial given then the GCC has included an immunity clause - then the UNSC has said that they'll return to it. It will be very interesting to see how the next phase in Yemen develops.

The strange case of the extra comma

2011-10-22T04:34:00.000+01:00

(Commas are important. And box two contains a chameleon; do keep up at the back.)

Grammar? Oh dear.

At the risk of dredging up bad memories for an entire generation, (myself included), I'm sorry to confirm that our 4th-grade teachers were correct: grammar matters. And it is especially important to lawyers when it comes to interpreting legislation and Treaties. For international law, the sacred text in interpreting treaties is itself a Treaty - the 1969 Vienna Convention on the Law of Treaties (VCLT) which came into force in 1980.

The grammatical challenge du jour is with the 1968 Nuclear Non-Proliferation Treaty (NPT). NPT Article VI reads:

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

This is a very long sentence. With a single comma.

It could be interpreted in a couple of ways:

First, it could mean that State Parties are are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament as well as pursing a treaty on general disarmament under strict and effective international controls.

Second, it could mean that the State Parties are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament within the context of a treaty on general disarmament under strict and effective international controls;

Grammatically, the first interpretation makes more sense than the second, because the comma separates the first clause

"negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament,"

from the second

"and on a treaty on general and complete disarmament under strict and effective international control"

making it clear that the two are separate notions.

This construction would mean that the Nuclear Weapons States (NWS) were obliged to disarm independent of a treaty on general disarmament. Under this understanding, it would hard to argue that spending £30bn - £100bn between now and 2042 on a replacement for Trident would qualify as "nuclear disarmament", and that as such, such a purchase would be in direct contravention to the UK's international obligations, and would therefore be illegal as a matter of British law.

Unsurprisingly, perhaps, the UK Government favours the second interpretation, tying as it does nuclear disarmament to a future treaty on "general and complete disarmament". As this happy state of affairs is yet to occur (CCW, CWC and BWC notwithstanding) - and the use of the modifier "complete" sets the bar extremely high - so the logic goes, there is no requirement for nuclear disarmament, however desirable this may be. Conveniently, the second formulation does not make it illegal to procure a replacement to the existing UK Trident SLBM system.

(Minimum deterrence looks a lot like maximum deterrence but with fewer missiles.)

But what's interesting is that over the last decade or so, UK Governments have clung to their tortuous grammatical interpretation whilst publicly demonstrating that the UK is making reductions in its nuclear forces (even as they spend £1bn per annum to reinvigorate the AWE Aldermaston nuclear weapons design and production infrastructure). This appears to be an odd halfway house, as it attempts to demonstrate that the UK is moving towards nuclear disarmament whilst retaining what Whitehall describes as a "minimum credible deterrent".* Moreover, to scrub up its disarmament credentials, the UK draws attention to its ratification of the Comprehensive Test Ban Treaty (CTBT), and the fact that irrespective of the stalled Fissile Material Cut-Off Treaty (FMCT), the UK is no longer producing fissile material for military purposes.**

Indeed, the UK Foreign Office goes so far as to describe the impact of the 2010 Strategic Defence and Security Review (SDSR) thus:

"In this Review the Prime Minister, David Cameron, and Deputy Prime Minister, Nick Clegg, committed the UK to maintaining a credible deterrence by:

reducing the number of warheads onboard each submarine from 48 to 40
reducing our requirement for operationally available warheads from fewer than 160 to no more than 120
reducing our overall nuclear weapon stockpile to no more than 180
reducing the number of operational missiles on each submarine

These reductions illustrate that whilst the UK believes in maintaining a minimum credible deterrent this is kept constantly under review and is fully in line with our international obligations under the Nuclear Non-Proliferation Treaty."

But it is only in line with the UK's "international obligations under the Nuclear Non-Proliferation Treaty" if the second, grammatically tortuous, interpretation of NPT Art VI is accepted.

So who is right? And does it matter?

On which interpretation is correct, I'm not sure yet. But it certainly matters, as if the first interpretation is correct, then the UK Government could find themselves explaining a breach of their international obligations. Against this backdrop, I'm very much looking forward to reading Daniel Joyner's new book, especially after some of the critical reviews. I'll write again when I've read it and reflected.

* As mentioned before this blog does not accept the bald assertion that the UK Trident system currently deters anyone or anything, and therefore doesn't use the term.

** The cynics may observe that it's easy to be in favour of a narrow FMCT if you've got all the highly enriched nuclear fuel that you would ever need on hand, especially if it is already outside of IAEA safeguards.

Three-and-a-half down....

2011-10-21T22:02:00.000+01:00

(No risk of running out of red paint.....)

Back in January, I put up a tongue-in-cheek post on the Arab world's dictators, taking the chance to laugh at the cults-of-personality that have blighted the governance of the region since decolonisation in the 1950s. All good clean fun, provided that you don't have to live in any of the more-or-less authoritarian states they ran (badly).

I certainly never expected to be recording the final defeat of Gaddaffi's forces in Sirte at the same time as Tunisia is preparing for its first-ever democratic elections - with an astonishing and inspiring 11,000 candidates running for 218 seats - this Sunday. Hence, we are witnessing a zone of democratic opportunity running from Tunisia to Egypt - absolutely excellent news. Moreover, given the UN vote due today, it seems impossible that Ali Abdullah Saleh will be able to revert to running Yemen in the same manner as he has since 1978, bringing the winds of change to Yemen. And Syria? Well, I'd be a seller of shares in Asad Inc., were they publicly traded.

The legal bit
But the process of revolutions matters, and in Libya there was clearly an International Armed Conflict (IAC) between NATO and Gaddaffi's forces, sanctioned by UNSCR 1973, and a Non-International Armed Conflict (NIAC) between the National Transitional Council and the Gaddaffi regime; the ruling law was clearly some flavour of LOAC in places where conflict was actually taking place.

(Gaddaffi's last redoubt)

In the last 24 hours, it has also become clear that Gaddaffi was alive - though injured - at the time of his capture, and that he was subsequently shot dead, apparently in cold blood. Let's be clear - killing Gaddaffi was the execution of a presumptive PoW (presumptive in that Gaddaffi would have had PoW rights until an a GC III Article 5 Tribunal - which doesn't appear to have been held - decided that he did or didn't qualify), which itself is a War Crime contrary to Article 8(2)(b)(vi) of the International Criminal Court's Rome Statute.

As Elham Saudi of Lawyers for Justice in Libya (LFJL) pointed out on the UK's Channel Four news last night, it would have been much better for him to have faced trial, both from notions of justice and for the victims to have their day in court. What is interesting now is how the new Libyan authorities choose to deal with these important legal issues - as the Rome Statute makes clear, crimes committed by both sides of an armed conflict need addressing.

New Project: Trident Replacement

2011-10-21T17:31:00.004+01:00

(One of the few photos to make Type 45 DDGs - left - at £1bn each look comparatively inexpensive...)

As some of you know, I'm currently sitting on as a juror, meaning that these posts are somewhat erratic. For this, my apologies - we should be done next week.

However, this is the first post in a new series on the options and legal issues occasioned by the UK's impending decision on whether or not to replace the Vanguard-class ballistic missile submarines (SSBN) in June 2015 as part of renewing the UK's nuclear weapons programme. A future UK SSBN would carry the UGM-133 Trident II D5 submarine-launched ballistic missile (SLBM), which has been life-extended to their expected out-of-service date of 2042. In short, the (so-called) "UK Nuclear Deterrent"* could easily be assumed to be required and simply treated as a technical and management challenge that just requires the MoD and the defence industry to get on and build the submarines.

As a system, Trident remains impressively reliable, with USS NEVADA conducting the 135th consecutive successful test launch in March 2011, an unmatched reliability record for SLBMs, and one which contrasts vividly with the Russian's on-going problems with the SS-NX-30. Moreover, as a result of the 1962 Polaris Sales Agreement as amended for Trident under Regan and Thatcher in 1982, the UK has a privileged position vis-a-vis the other nuclear states, it does not have to develop an indigenous SLBM delivery system, making UK Trident comparatively cost effective.

(Not your average SLBM showroom)

Trident is, in the famous words of Sir Humphrey Appleby "the nuclear missile that Harrods would sell you". Perhaps, but as (the ever) hapless Jim Hacker replies, "... it costs £15bn and we don't need it." Allowing for inflation from 1986, this is roughly the discussion that the UK faces today.

But as much as I revere "Yes, Prime Minister", there are also financial, strategic and legal elements at play in the decision, and this blog will present commentary of them over the next few months.

*You will never see this blog refer to the UK nuclear weapons programme (UK NWP) as the "UK Nuclear Deterrent" as this implies a value-judgement that has yet to be demonstrated, namely, that someone or something would, but for the existence of the "Deterrent" want to attack the UK, and have therefore been successfully deterred.

Is Torture Always Wrong?

2011-10-19T23:40:00.002+01:00

(Pace Blackadder, this is "tactical questioning", not torture.)

Jeremy Waldron at NYU has published a most interesting paper entitled "What are Moral Absolutes Like?" on whether it was ever allowable to use torture. I'm working through it now, and is well worth a read.

"Canada, Arrest Bush!"

2011-10-16T23:26:00.001+01:00

("But if you came back without immunity, George....")

Well, well.

It seems that Amnesty International have sent a missive to the Canadian Government demanding that they arrest and try former US President George W. Bush for complicity in torture, (specifically the "enhanced interrogation techniques") authorised after 9/11 when Bush visits Surrey, British Columbia for an economic forum on October 20, 2011.

Predictably, there has been much bombast against Amnesty. And in their heart-of-hearts, I don't suppose that Susan Lee and her Amnesty colleagues seriously expect any Canadian Government - let alone Stephen Harper's Conservatives - to actually arrest and try Bush. Indeed, POLITICO quotes Canadian Minister of Citizenship and Immigration Jason Kenney PC MP;

(Jason Kenney PC MP)

“I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International,”

And further, according to the Minister,

"Perhaps this helps to explain why Salman Rushie (sic) has said that ‘it looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy,’ and why Christopher Hitchens has written about the organization’s ‘degeneration and politicization."

So far, so predictable. But what is the legal position?

Both Canada and the United States are parties to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which came into effect in 1987. CAT is very clear on two pertinent points - what constitutes Torture in Article 1(1), and the obligations of State Parties in Article 7(1).

CAT Article 1(1) defines torture as:

1(1) For the purposes of this Convention,torture means any act by which severe pain or suffering, whetherphysical or mental, is intentionally inflicted on a person forsuch purposes as obtaining from him or a third personinformation or a confession, punishing him for an act he or athird person has committed or is suspected of having committed,or intimidating or coercing him or a third person, or for anyreason based on discrimination of any kind, when such pain orsuffering is inflicted by or at the instigation of or with theconsent or acquiescence of a public official or other personacting in an official capacity. It does not include pain orsuffering arising only from, inherent in or incidental to lawfulsanctions.

So-called "Waterboarding" - in actuality, simulated drowning, one of the "Enhanced Interrogation Techniques" - has been described as torture by the former UN High Commissioner for Human Rights Louise Arbour, reflecting the view of the international community. Indeed, it is noteworthy that President Obama revoked authorisation of these "techniques" on the second day of his Presidency - Jan 22, 2009, in an Executive Order entitled "Ensuring Lawful Interrogations", precisely "to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions". CAT is one of these Treaty Obligations. In signing the Executive Orders allowing these techniques in general, and specifically "waterboarding", President GW Bush has a prima facie case to answer under CAT Art 1(1).

(24 Sussex Drive, Ottawa; politically, the buck stops here.)

What are Canada's obligations under CAT? Per Art 7(1) and 7(2),

7(1) The State Party in territory underwhose jurisdiction a person alleged to have committed anyoffence referred to in article 4 is found, shall in the casescontemplated in article 5, if it does not extradite him, submitthe case to its competent authorities for the purpose ofprosecution.

7(2) These authorities shall take theirdecision in the same manner as in the case of any ordinaryoffence of a serious nature under the law of that State. In thecases referred to in article 5, paragraph 2, the standards ofevidence required for prosecution and conviction shall in no waybe less stringent than those which apply in the cases referredto in article 5, paragraph 1.

In other words, if the US is unwilling to try President G W Bush, then if he were to appear in the territory of another CAT State Party, then that State Party is obliged to extradite him to a State Party that will - this was the basis for the-then Senator-for-Life Augusto Pinochet to be arrested in the UK in 1998 - or to try President G W Bush under universal jurisdiction. And note the obligatory nature of the injunction in Art 7(1) - "The State Party ... shall" - not "The State Party ... may" or "The State Party ... could if it feels like it"; CAT imposes a binding obligation on the State to do so.

(Pinochet departs from RAF Waddington in 2000: truly, the craven Jack Straw's political epitaph.)

And this, combined with the strongly independent Canadian Courts, is presumably is what Amnesty are counting on; if Bush turns up in British Columbia, and the Harper Government declines to arrest him, then the Canadian Courts presumably could force the Government to fulfil its CAT obligations by arresting and trying or extraditing President G W Bush.

This is no theoretical threat; indeed, it is reported that President G W Bush cancelled a trip to Switzerland last February to avoid the threat of legal action in Swiss Courts. And for the record, I don't expect Bush to be arrested - because I don't expect him to take the risk.

So, Canada, over to you...

USG Opinion on killing Anwar al-Awlaki: Part II

2011-10-15T05:49:00.000+01:00

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43)

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001.

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status.

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as,

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him."

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.

* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.

Gareth Evans on R2P: Is Syria next?

2011-10-15T02:31:00.001+01:00

(Gareth Evans QC AO)

Back at the beginning of the Libyan revolution, I asked "Am I my brother's keeper" in reference to the Responsibility to Protect, or R2P. So it was with some annoyance that I missed the lecture by Gareth Evans, the former Australian Foreign Minister, and later head of the International Crisis Group at Chatham House's International Law Programme on 6 Oct 11. Evans has been a major proponent of R2P in recent years, and under R2P, the international community undertakes to ensure that the failures of the 1990s in Rwanda, Srebenica and Kosovo are not repeated - a position that made it into Paragraph 139 of the 2005 World Summit Conclusions. Para 139 states in part:

"The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

As this blog has previous pointed out, Para 139 is a real drafting hodgepodge, betraying the lack of unanimity in the international community. Crucially, should R2P - and especially the use of force - be allowed outside the direct consent of the UNSC acting under Chapter VII's Article 42?

The relationship between R2P and Chapter VII is critical, because at one end of the spectrum, R2P is no more than a rhetorical device, as the UNSC continues to control the use of force, even in time of humanitarian emergencies; if so, it is pointless. At the other end of the scale, R2P could be construed as bolstering (the pre-existing) right of humanitarian intervention outside of the UNSC in cases where the UNSC is unable or unwilling to act.

(Them again....)

It is therefore with great interest that I read the transcript of Gareth Evans' 6 October speech. What's particularly striking is that Evans repeatedly ties R2P very narrowly to the UNSC rather than an expansive understanding tied to humanitarian intervention, and he then sets out a five criteria test for what he takes great care to describe as

"... legitimacy - not the criteria of legality, that's clear; Security Council support - criteria of legitimacy"

These criteria are below; though lengthy, I think it is worth quoting Evans' five-fold test in full:

The first test is seriousness of risk. Is the threatened harm of such a kind, such a scale, as to at least prima facie justify the use of military force?

The second test is whether the primary purpose of the proposed military action is actually to halt or avert the threat in question, as distinct from being about oil or bananas or whatever. They can be secondary or tertiary considerations and they could be quite relevant in helping to mobilize otherwise sceptical domestic constituencies but the intention test has to be what’s the primary motivation genuinely – is it to help or avert harm?

The third test is last resort. Has every non-military option been, if not applied in practise because that can be possibly time consuming in some cases, but has it at least been explored and found wanting and unlikely to serve the purpose.

The fourth test is one of proportionality, of a scale, the duration, the intensity of a proposed military action and the minimum necessary to meet the threat in question.

And the final and often the toughest legitimacy test is balance of consequences. Will those at risk be better or worse off as a result of such military action being taken?

(Decent shooting in Bab al Azizya, with photo credit to Elham at LFJL)

In Evans' view the 2011 Libyan intervention met all five criteria, though in his view they may have gone too far in prosecuting the conflict - in that it went further than the abstaining States were probably expecting when they allowed the passage of UNSCR 1973 (it passed 10-0-5, with Brazil, China, Germany, India and Russia abstaining), which probably contributed to the Chinese and Russian vetoes of draft UNSCR S/2011/612 of 4 Oct 2011. S/2011/612 was defeated 9-2-4 (China and Russia vetoing, with Brazil, India, Lebanon and South Africa abstaining); in other words, if China and Russia had abstained, there was the bare minimum of 9 votes required for passage.

So with the death toll in anti-Assad protests reportedly reaching 3,000, what is the position of R2P after a (very benign) draft UNSCR on Syria was vetoed by the UNSC? (And let's be very clear - the vetoed text is a million miles from authorising the use of force - and had been deliberately watered down to overcome Chinese and Russian objections, which suggests that sponsors were expecting that the concessions would be sufficient get this through, and as a result it isn't likely to do much for P5 relations on the UNSC.)

I presumed that R2P had to add something to the existing framework, by explicitly recognising a right to intervene when circumstances on the ground demanded it. Simply, without it, R2P is meaningless, and there's no point in having it at all - so why put it in Para 139 of the 2005 World Summit text? It is this element that is so confusing (and potentially disturbing) about Gareth Evans' speech - it is when the UNSC is deadlocked, and crimes are occurring on the ground that the R2P buttress to humanitarian intervention doctrine comes into its' own, and intervention to protect the civilian population should be initiated.

(Closer to the action than Gioia was to Libya. Beer is better, too.)

This is one that will run and run, but I'd prefer to see the UK and allied aircraft that handed Benghazi's airspace back to Libyan control yesterday moved to RAF Akrotiri, Cyprus to bring a little force to bear on the Syrian regime. Akrotiri is less than 220nm from Damascus - under 25 mins flying time. But for Evans, presumably the no-go from the UNSC would mean that R2P can't be applied - and it is this result with which I have the most trouble.

So, President Obama, Prime Minister Cameron and President Sarkozy: prove that Gareth Evans is too cautious and give R2P some legs with an NFZ over Syria - it's legal, and it woulg give the Arab Spring the opportunity to bloom in Damascus, Aleppo and Homs as well.

USG opinion on killing Anwar al Awlaki: Part I

2011-10-10T17:02:00.000+01:00

(Our source of the legal advice. A good, but unsatisfactory, start.)

On Saturday, the NYT published an article on the legal advice that underpinned the US attack in Yemen that killed Anwar al-Awlaki and Samir Khan. Unfortunately, the advice itself is yet to be published, so we can only comment on the NYT's extracts, but this is nonetheless an interesting start. Clearly, the legal advice on so sensitive a topic should be released, even if the intelligence and intelligence methods that are operationally critical cannot be disclosed.

We are told that the Department of Justice (DOJ) advice runs to "roughly 50 pages"; this is not surprising, as it has to address a number of difficult issues in international law - both LOAC and IHRL - and US domestic law as both Awlaki and Khan were US citizens. The first key point on legality is the supremacy of international law over US domestic law in these cases, as irrespective of the US legal position, if an action was illegal under international law, it would be illegal, period. Of course, there could be circumstances under which an action is legal under international law and illegal under US law, in which case US law would govern US government actions; however, the supremacy of international law over (any State's) domestic law means that the converse cannot be true.

"Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again."

As this blog has rehearsed, the challenge in determining whether or not it is legal to use force against an individual in an international or non-international armed conflict (IAC or NIAC) is down to their combatant status, by ensuring that States do not attack civilians. As the "Basic Rule" in Article 48(1) of the 1st Additional Protocol 1977 (AP I) states concisely for IACs,

"... the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

For NIACs, discrimination is found in Article 13 of the 2nd Additional Protocol (AP II). Only if someone has combatant status - defined for IACs in Article 43 of AP I, and by implication in Article 13(3) of AP II for NIACs - can they be attacked. Only once combatant status in an IAC through membership or in a NIAC by Direct Participation in Hostilities is established can a targeting decision move on to the questions of military advantage, proportionality and humanity.

Hence the importance of establishing Mr Awlaki's status as a "cobelligerent" with AQ. However, this raises more questions than it answers, begging the question of what is the belligerent status or otherwise of AQ and the United States - the implication is that AQ is involved in a transnational IAC, but this is unstated.

(Not all law enforcement operations need to look like this....)

But then the NYT report says this:

"The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located."

Which is odd, because this is the language of law enforcement and human rights law - that we need to arrest criminals and that the use of lethal force (the most significant violation of UDHR Art 3 and ICCPR Art 6(1) Right to Life imaginable) is only legitimate when killing a suspect is the only way to avoid an imminent threat to the lives of others (eg suicide bombers). So did the US consider Awlaki an IAC or NIAC combatant or not? And if not, on what imminence grounds did it use lethal force?

The NYT again:

"The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located."

If true, this is a troublingly expansive notion of imminence. Imminent threat to life in law enforcement practice has been understood to mean armed suicide bombers ready to detonate their bombs, or kidnappers holding a gun to the head of hostages. This is a million miles from someone who is "not in the midst of launching an attack at the precise moment he is located" - which is much more like the definition of an IAC combatant or a NIAC commander who is fulfilling a continuous combat function of an organised armed group, which brings us back to the key question of what type of conflict (if any) does the US believe it was engaged in with Mr. Awlaki?

Releasing the legal advice should answer this question. And only then we can discuss what the implications for US law are of killing US citizens in this manner.

Drone Strikes: A new international norm?

2011-10-10T02:09:00.002+01:00

(Jeff Redfern - fired a Hellfire by mistake, became a legend*)

There's much ado about drones / UAVs / RPAs at the moment, especially as Americans are engaged in an interesting debate about whether the US Government killing American citizens without apparent due process, after the killings of Anwar Al-Awlaki and Samir Kahn in Yemen in late September. Indeed, there's an interesting piece on the leaked legal advice in today's New York Times which I'll come back to in the next couple of days. For background, this Economist piece is good.

The NYT has also published an interesting article on worldwide drone proliferation, which lists the US, the UK and Israel as the three states to date which have used drones for lethal attacks (US in at least in Iraq, Afghanistan, Pakistan and Yemen; UK in Afghanistan; Israel in Gaza and Lebanon), with many more States interested in acquiring the capability. Indeed, General Atomics Aeronautical (GA-ASI) have a nice website for all you aspiring Jeff Redferns out there...

But what caught my eye was this from Dennis M. Gormley, a senior research fellow at the University of Pittsburgh who the NYT quoted as:

"“The problem is that we’re creating an international norm” — asserting the right to strike preemptively against those we suspect of planning attacks"

An international norm? Interesting, sounds like international law. As a claim, how does it stack up?

(The Peace Palace, home of the ICJ. It's architecturally absurd, but remarkable. Do go!)

Sources of International Law

Article 38(1) of the Statute of the International Court of Justice is widely accepted as the authoritative statement of the sources of international law. These are:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Which is sufficiently broad to cover just about anything. However, "an international norm" clearly falls within the ambit of Art 38(1)(c), and if there's sufficient State Practice, then hey presto we've created international law.

So it that's the theory, what does this mean in this case?

Probably not much. At least, it shouldn't mean much, as what the US is doing with it's drone strikes should not be random acts of violence against its politico-military opponents, but as permissible and proportional uses of force under LOAC. Indeed, far from being random, legitimate uses of force under LOAC, will, as usual require:

- a conflict nexus as either International Armed Conflict or Non-International Armed Conflict;
- military necessity,
- humanity,
- proportionality and
- the ability to distinguish between military targets and civilians.

None of this changes with the use of drones / UAVs / RPAs; the rules are the same as they always were.

(Preventative warfare? Not big, clever or legal.)

What speaks volumes is the second half of Gormley's quote:

"asserting the right to strike preemptively against those we suspect of planning attacks"

I'm not at all certain the Obama Administration has reverted to the notion of preventative warfare that Bush (43) Administration advanced (to near-universal opprobrium) in 2002 and 2006. If Gormley were to show that this was the case, then the US would again be out on their own (and not in a good way). As far the claim that drones allow for the preemptive use of force outside of armed conflict because they are drones, this is risible: drone attacks are governed by the existing legal framework.

Moreover, any suggestion that drone attacks absent a conflict nexus are governed by anything other than International Human Rights Law (IHRL), which demands the use of minimum force at all times, and only allows for the use of lethal force in the exceptional cases of a clear and immediate threat to the lives of others which cannot be stopped in any other way, is also simply wrong. Quite how an IHRL-compliant lethal use of force by a drone could be justified is an interesting mental exercise, but it would have to be a circumstance in which an individual was imminently threatening the lives of others, that there was no alternative to use force, and the drone was the only option. The challenge here is that how would you know that from a drone alone? Hard to see, but the best that can be said is that it can't be excluded that there could be (extreme) circumstances in which IHRL-compliant drone attacks could be legal, but the onus will be on the attacker to demonstrate that such an attack was legal.

But let's be clear, there is no new law here - drone attacks are more than adequately governed by the existing use of force framework, and notions of "preventative war" were - and remains - illegal.

* But only in Doonesbury.

Post SDSR - Implementation through PR11

2011-10-09T20:24:00.001+01:00

(Hunter PR 11*. Like MoD PR 11 but much more elegant...)

Planning Round 11 - PR11

I accept that it's boring bureaucracy, but process is vital in Government, and never more so than when dealing with budgets and finance. What's critical to remember is that the settlement reached in a Comprehensive Spending Review (CSR) / Strategic Defence and Security Review (SDSR) is in a very meaningful sense Churchill's "End of the Beginning", rather that an end in itself: all that has been agreed at this point is the budget "envelope" within which the Department will have to operate for the length of the budget deal.

What then happens is the process of converting the CSR / SDSR settlement into something that actually can (at least theoretically) be implemented by the MoD. This is a critical, and often under-rated / misunderstood step - many a drip slip betwixt cup and lip and all of that. It is also where the painful decisions become crystallised - where the metaphorical rubber really does hit the road.

In the MoD a key part of this process is known by the catchy title of "Planning Round XX". This process costs lots of options, prioritises them, chooses which elements to fund and which cuts to make to make the proverbial quart fit into a pint pot, and ultimately spits out an answer that is the operational annual budget of the MoD; the work for next year is PR 11.

What was done?
The first pass results were announced by Liam Fox on 18 July 2011. As Chalmers points out, this is effectively another Defence Review less than a year after the SDSR was completed, underlining that the SDSR did not resolve the funding dilemma - and was therefore unimplementable. It is hard to imagine a more damning indictment of a review of SDSR's scale and ambition.

Some good news came in July - there was a planning commitment that the MoD equipment procurement and equipment support budgets would increase 1% in real terms from 2014/15. Of course, this is an attempt to bind a future spending review - and indeed a future Parliament in a way that A. V. Dicey et al would decry as unconstitutional interference with Parliamentary Sovereignty - which may or may not work; not the least reason is that if the economy doesn't turn around the pressure on the post-Afghanistan MoD budget will all be one direction.

In return for jam tomorrow, MoD has agreed to make what Chalmers calls "further difficult decisions on capability reductions, notably in Army personnel numbers." Specifically, this means bringing the Army down to 84,000 by 2020, a figure that was bandied about in the SDSR process. But the problem is that what these reductions are to be hasn't been announced, which implies that it hasn't - or at least the phasing and the force mix - hasn't been agreed. The answer to maintaining capability by cutting numbers is to shift to (cheaper) reservists from (expensive) regulars, with £1.5bn over the next decade to fund this. What impact £150m p.a. will have is not yet clear.

UK Future ~~Capabilities~~ ~~Pit Falls~~ Overspends

(Type 26 Global ~~Cocktail Party Platform~~ Combat Ship)

(F-35C Lightning II - shiney, American, over-budget, late)

(RN Trident II-D5 SLBM Launch. No, you don't get to see the "cool" submarine thing.)

The most obvious risks in a strategic steady state - ie, without any new unplanned for threats or wars - are the three biggest ticket items - replacement submarines for Trident, F-35 Lightning II strike fighters for the FAA and the RAF, and the future frigate, Type 26.

Trident is perhaps the easiest to discuss because it is so binary as a programme - it is largely independent of the rest of the MoD force structure in that though it has supporting assets, at a pretty profound level you either do Trident or you don't. And therefore you can consider the £30 - £100bn bill with a degree of isolation from the rest of the budget. It is also a significant technical risk given that it is a new UK submarine design, as with the unfortunately named "Astute" class, this is an area of significant weakness in the UK defence manufacturing base.

(All of this for 20 sorties a day? Really? Really?!)

F-35C is connected to other programmes, most obviously the carrier. It is also different in that the UK is a bit part player in the US programme, and the US will make F-35 work for the USAF and the USN, because without it, their qualitative edge over "near peer" adversaries will erode. The cost, however, is vast, and initial (optimistic) UK procurement figures of 132-150 F-35s simply will not happen as the unit cost seems destined to be around the £100m mark. At that price, 60 airframes - or enough for just four 12 aircraft squadrons plus a training flight - is a £6bn+ programme - similar to the aircraft carriers.

It is easy to see why Chalmers cites an MoD decision to routinely deploy the UK carrier with only 12 aircraft (versus the 36 originally intended). Unfortunately, 12 aircraft the work of 36 cannot do, and the MoD has scaled back the sortie-generation requirement of the carriers from 72/day to 20. 20?! Given that the cost spiral and delayed service entry date for the F-35C was known and knowable in 2010, it is hard to understand how the carrier programme could have made prioritisation sense if it is only expected to produce 20 sorties per day. Charitably, all that can be assumed is that the planners were planning on having more than four squadrons of F-35C in total, making it more likely that the FAA could have 36 aircraft and crews trained and deployable. Except that if there are only four 12 aircraft squadrons in toto, this is not going to happen. From this, it is hard to understand why the UK is pursuing the carrier programme at all.

(Type 45: Stalin's maxim that "Quantity has a Quality all its own" doesn't work in reverse...)

Type 26 is much easier to argue for and against. The UK needs a new frigate. It is not clear that the UK needs to go to the trouble of developing one for what will never (sadly) be more than 20 hulls, and may well end up being half of that. Given that the Canadians are not interested in a collaborative programme, the Brazilians may buy one and then build their own, and there is lots of competition, it would surely make more sense for the UK to buy off the shelf from Europe (FREMM, Lafayette or F124 would do nicely). And before anyone shouts "HORIZON was a disaster", if we had proceeded with it, the RN should have been able to afford 9 or 10 instead of the 6 Type 45s they're going to operate at £1bn each.

Tough choices. But they need to be made if the UK is going to get maximum value for money from the small defence budget: MoD is not there to create or sustain jobs for BAES.

So, with the greatest respect to Malcolm Chalmers, it is hard to see how he can conclude that, "the MoD now appears to be well on the way to closing its £74 billion funding gap" until the cuts are detailed and the numbers and the underlying assumptions can be independently verified (as the NAO is now empowered to do.) Let's see how they get on, but I'm a long way from convinced.

* Ok pedants, I know the RN used the Hunter PR 11s as trainers and not operationally, and that therefore they should probably been designated T(PR) Mk. 11 - or indeed T(PR) Mk. 12 as they were based on Hunter F Mk. 4 airframes, not the FGA Mk. 9 that begot the RN's GA Mk. 11. If this is a burning concern, I suggest you complain retrospectively to the Chief of Staff (Aviation and Carriers) and Rear Admiral Fleet Air Arm, as he's presumably less busy than he was, given the scrapping of the Harriers and the Carriers...

Post SDSR - The SDSR Numbers

2011-10-06T11:15:00.000+01:00

(Ministry of Deficits? Not quite an anagram, but there you are...)

Prof. Malcolm Chalmers of the Royal United Services Institute (RUSI, MoD's favourite thinktank) published a new paper this week on UK Defence spending, and it makes interesting reading. In this post, we'll look at what was said about the numbers and the Strategic Defence and Security Review (SDSR); in the next one, we'll look at implementation through Planning Round 2011 (PR11).

Labour's Legacy
The first (and most important) point is that the the out-going Brown Administration left the MoD in a terrible positon. Depending on how you ask the question, the scale of the 10-year budget shortfall between 2010-11 and 2020-21 was either £27bn (a difficult £2.7bn p.a. - or roughly 8% of the MoD's baseline budget) if you allowed for 1.1% real growth, or a terrifying £51bn (an impossible £5.1bn p.a. or more than 14% of the annual budget) if the budget had been maintained at 2010-11 in real terms. And these were estimates which assumed that this programmes in the budget would (for the first time) run on time and to budget. (Ah. Ish?)

(Bob Ainsworth MP, Labour's last Defence Secretary - "ineffective" might be the politest word.)

In fact, despite Labour's recent attacks on the Government over the cuts, for Labour to close this funding gap, spending would have had to increase at at least 2.2% per annum for the next decade. Ignoring austerity and the fiscal realities that go with this, this is a level of increase unknown since 1985, and more than twice the 1.1% growth that they actually invested over the course of their 13 years in power. As Chalmers notes,

"... as a result, the MoD found it increasingly difficult to fit an ambitious forward programme within a much less ambitious – albeit still slowly growing – budget."

Indeed. Worse, Labour in general and Bob Ainsworth in particular made a number of pledges to purchase equipment late in the Brown Administration that sounded good - e.g. another 22 Chinook helicopters - when they must have known that there was no money to pay for them. This was either breathtakingly cynical politics of the worst kind, (with the results measured in the dead and maimed), or it demonstrated a criminally complete lack of knowledge, competence, control and responsibility. Either should have been a resigning - or sacking - matter.

So not only should Labour apologise for their past record, they should also probably shut up about the whole thing for a decent period, until they've actually got a grip on the big questions (e.g. UK's role in the world, Trident, funding this defence business).

May 2010 - A new dawn. (Or at least a Defence Review)

(We're on the same side. Honest.)

SDSR was the long overdue defence review that built on the hodgepodge of the period since the 1998 Strategic Defence Review (SDR 98) and 2002's New Chapter. And the £51bn hole in the budget over the next decade needed to be addressed at a time of an unprecedented fiscal squeeze. Enter Liam Fox, stage right.

But austerity isn't fun, as the current Government is finding out. Liam Fox successfully fought for a smaller cut than the Treasury wanted, but was only partially successful. Defence did do comparatively well - it had an 8.5% real terms cut by 2014-15 rather than the 10-15% that most external observers were expecting; at some level this is a comparative triumph. However, this was on top of the £51bn that MoD was already in hole over the next decde, and led to two problems.

First, due to the 8.5% cut that the MoD received in the austerity budget of the 2010 Comprehensive Spending Review, the 10-year deficit increased to an eye-watering £74bn.

Second, the Treasury (very sensibly, in my view) got the funding of Trident replacement back into the defence budget, rather than being a freebie provided by the Treasury. This added between £25bn and £50bn to the Departmental deficit through to 2030 - and as the majority of these costs come after 2020-21, they are not included in the £74bn figure. It can be inferred that HMT was trying to achieve two things - first, not to pay for it, and second to make Trident compete against other defence priorities. The first worked beautifully, but the second failed, as Liam Fox moved Trident into the untouchable box, significantly decreasing the flexibility of the overall budge - by at least £7bn over the years to 2020.

Clearly something had to give. Actually, quite a lot of somethings had to give; here's a flavour.

(Nimrod MRA4: all 11 scrapped to save £200m p.a. after spending £4bn. Would have been quite useful, too.)

(Type 22/3 frigate HMS CUMBERLAND - first UK ship to Libya, scrapped on return.* The other three 22/3s went too, taking the surface fleet to 19 FF/DD - compared to 35 in 1998, and 65 in 1982's Falklands War.)

(Harrier GR9 - more mourned by RN rather than RAF, as it ended UK carrier ops until 2022(ish). (Maybe).)

(CVS HMS ARK ROYAL - scrapped, along with her jets.)

(Sentinel R1 - brand new, now permanently deployed to Afghanistan, to be scrapped in 2015)

The eagle-eyed amongst you will note that there is not heavy on land forces - the Army and Royal Marines were largely left alone until after the withdrawal from Afghanistan that has been pencilled in for 2014. This will move the subsequent pain for them until the defence review after the 2015 election. And this ignore the 40,000 MoD civil servants and 22,000 servicemen and women who will lose their jobs in the next three years, along with a slew of new programmes.

(Truth is stranger than fiction...)

SDSR Process
So how did this happen? And why were such apparently random choices made, such that the RN will have one and a spare aircraft carrier, (with no aircraft - cunning, huh?), and the RAF has so many PFI-funding air refuelling tankers that they will have nearly two per fast-jet squadron? Some of the answer will be in the process.

It was long suspected, but Chalmers' paper is the first time that I've seen it (semi-officially) confirmed that the MoD was deeply engaged in Op OSTRICH, ignoring the HM Treasury's (HMT) request that all Departments study the impact of 10% and 20% cuts in their budgets. Until the last three weeks of the Review, MoD appears to have had a single case of 3% cut, and MoD

"believed – or at least hoped – that the Treasury was bluffing, and presented no detailed plan for how to make steeper reductions."**

Ah. Taking on HMT in a game of chicken is always a cunning plan. They will blink! Until they don't. Oh. The effect was predictable... Chalmers again:

"... [this] had the effect of increasing total ten-year required savings by £17 billion. This not only required much deeper savings in 2013/14 and 2014/15, a challenge which the MoD has still not fully been able to meet. As importantly, it reduced the baseline for spending levels for the rest of the decade."***

The MoD may cry foul and grumble about mixed political messages, but the reality is that probably didn't believe things could get this bad, and the culture in the MoD meant that the level of prioritisation that would've been required simply didn't exist, as the subsequent Levene Review into Defence management found. This set the stage for the final stages of the SDSR debacle.

(They have to agree as well, you know....)

SDSR Endgame

Chalmers recounts the MoD's long term plan to meet the Treasury's numbers was intertwined with the repatriation of the Army units from Germany. This would've seen the Army reduced by 20,000 to 82,000 by 2020 primarily by withdrawing from Germany without replacing those numbers - the point being that building a significantly increased infrastructure for the returning Army units would have been prohibitively expensive, which is the primary reason that it hasn't happened since the end of the Cold War. An elegant administrative solution.

Except that Number 10 didn't buy it.

Essentially, No 10 wouldn't go for cuts in the Army whilst there was a war on in Afghanistan. In fact, there were some cuts - 7% of the Army's regular strength to 95,000 by 2015 - but the weight of the cuts went on the RN (14% personnel cuts) and the RAF (17%). It was also in this end game that Nimrod / LRMPA and Carrier Strike (HMS ARK ROYAL and the Harrier GR9s) were binned without replacement. There is reportage that this was all a last minute fix to save the Tornado GR4 strike aircraft instead of the Harrier GR9s achieved by an RAF end-run, but even if true, in operational terms it was probably the correct decision.

All that was left was for the senior leadership to trumpet the strategic nature of the SDSR. But the façade cracked under the internal contradictions - aircraft carrier minus aircraft, doing the same or more with less.

The bigger problem was that all of this pain still didn't close the £74bn gap. This would be the job of PR11, of which more shortly.

*I'm told it is possible to take a phot of a ship without it wiggling about at high speed, but as I was repeatedly told, (as your author is a slow learner) "Tobbes, what's the point of that?"

** Chalmers, p. 7
*** Chalmers, p. 7

SDSR - Post Libya, more questions

2011-10-04T23:04:00.000+01:00

(6 Sqn RAF Typhoon* from RAF Leuchars: low, fast, agile. MoD budget: low.)

Against a backdrop of the Royal Navy's redundancies last week, there's been some interesting work coming out of the Royal United Services Institute (RUSI, MoD's favourite thinktank) this week from the estimable Malcolm Chalmers on defence spending. Prof. Chalmers' paper is here, and I'll comment on it in detail over the next few days.

The real questions remain around whether the budget is under control, and whether the reduced capability of the UK forces has been matched with a reduced level of political intent to use military force. (Oops. More complex, that.)

*Copyright: Andy Sheppard

안녕하세요, 한국

2011-10-03T16:59:00.000+01:00

Blogging can be rather narcissistic. After all, it gives me as the author the opportunity to expound on my electronic soapbox, and to generally rant at the world about stuff I think is interesting and to bore my friends with it. You also can then generate lots of statistics about what is being read, and where your readers are coming from.

Hence, imagine my surprise and delight to find that South Korea is now the third largest source of traffic after the US and the UK. This is slightly weird, as I've never been to South Korea, and know very few South Koreans. Anyway, it's delightful to have you here, and please do contribute to the Comments.

안녕하세요, 한국!

Does nationality matter in drone strikes?

2011-10-03T00:18:00.001+01:00

(Should owning one of these exempt you from a CIA drone strike?)

It appears that as well as Anwar al-Awlaki, the drone strike that killed him also killed Samir Khan, a US citizen who was responsible for producing Al Qaeda in the Arabian Peninsula (AQAP) Inspire magazine. It is also reported that Ibrahim Hassan al-Asiri, AQAP's master bomb-maker was also killed in the same attack. Does it make any difference that al-Asiri was a Saudi, rather than a United States national?

As a matter of international law - and I am not in a position to comment on the position under US domestic law - I can't see that nationality is the problem, (or indeed, even relevant) to the question of the legality of the attack. The key element point of LOAC is either is one of combatant status in an International Armed Conflict* (IAC), or either having a "Continuous Combat Function" or Directly Participating in Hostilities in an Non-International Armed Conflict** (NIAC). Discrimination between combatants and non-combatants has is customary international law binding on all States. If there is no armed conflict taking place, then LOAC does not apply, and the use of force must be justified under International Human Rights Law (IHRL).

So to answer the first question, in international law, the nationality of the targets is immaterial: what matters is their status as combatants, or if this is a law enforcement situation, then their nationality is irrelevant to the crimes. Hence, US nationality is not per se a bar to being killed by a CIA drone strike.

Therefore, the legal basis of the attack that killed al-Awlaki, Khan and (reportedly) al-Asiri has two hurdles to cross. First, what was their combatant status or otherwise? Second, did the attack itself meet the proportionality, discrimination and military benefit requirements under the jus in bello tests. (In policy terms, there should also be a third test: "Is this a good idea?", but that's not explicitly a legal question.)

(A very interesting study, though one not without controversy)

What was the combatant status of al-Awlaki, Khan and al-Asiri?

The analysis of the combatant status (or not) of these three men begins with the characterisation of the conflict. Three are possible:

- There is an IAC underway between Al Qaeda and the United States, and that AQAP is an active constituent of this IAC in the ungoverned spaces of Yemen.

- There is a NIAC underway in Yemen, in which AQAP is in rebellion against the legitimate Government, and that the US was acting in collective self-defence at the request of the Yemeni Government.

- There is no armed conflict in Yemen, but that AQAP are operating as a terrorist group, and that this was a law enforcement operation in which there was no other way to defeat an immediate threat to life other than by killing al-Awlaki, Khan and al-Asiri.

(Chatham House, centre of much common sense and good work.)

What sort of conflict is actually going on?

The characterisation of the conflict is a key element in the legality of the strike. And this is why Chatham House's forthcoming study on the characterisation of conflict is so important - it's central to the targeting decisions of what / who can you hit, and when can you do it? Let's look at the three options in turn.

(Aftermath of an armed attack: USS COLE towed from Aden)

International Armed Conflict?

The US could note that it had been attacked by AQ in Yemen in the attack on the USS COLE on 12 Oct 2000 (nearly a full year before the US 9/11 attacks), and that since that time, AQ, in the form of AQAP has been engaged in an IAC against the US from bases in Yemen, which Yemen has been unwilling or unable to suppress, and therefore the US has the right to self-defence against these attacks.

This argument is considerably strengthened if it counts AQAP as an element of AQ, as a number of small scale terrorist attacks would not meet the threshold for armed conflict themselves, though a larger number of such attacks can. In recent years AQAP has been one of the most dangerous AQ elements, with the "Underwear Bomber" Umar Farouk Abdulmutallab's failed attack on 25 Dec 2009, and the Toner Cartridge Bomb Plot discovered and disrupted in October 2010. Moreover AQAP's leading ideologue - Anwar al-Awlaki was also cited by Roshonara Choudry (jailed in London in 2010 for attempting to kill the British MP Stephen Timms) as a key influence.

However, the legal impact of declaring that the US in engaged in an IAC with AQ/AQAP would be that the US would have to accept that AQAP was a belligerent, meaning that any AQAP prisoners would have to have POW status until such time as an Article 5 Tribunal (so-named because it comes from Article 5, Third Geneva Convention 1949) has determined whether or not they were entitled to it. And in any event, even if such a Tribunal were to deem that AQAP prisoners were not POWs (e.g. they were mercenaries), then they are still covered by the basic guarantees of Art 75 of AP I as detailed in Art 45(3) of AP I. This is not something that the US has, to date, accepted (see: Guantanamo Bay).

Non-International Armed Conflict?

Under Art 1(1) of AP II, NIAC occurs between the:

... armed forces [of a High Contracting Party] and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Per the ICRC Commentary the insurgent group needs sufficient control of territory in order to be able to implement the Protocol's requirements. It is possible that in south eastern Yemen AQAP does indeed control the required territory, and that in the process it could do so. Under this characterisation, Yemen could request US assistance, and provided that there was sufficient evidence to conclude that these individuals were "direct[ly] participating in hoslities" then they could be attacked, subject to the usual jus in bello tests. But it is hard to see this as the best characterisation of the conflict, not least because of the explicitly international - and, indeed, US-specific - orientation of many of AQAP's operations.

(Others who have had trouble differentiating between law enforcement and the use of force...)

Criminals subject to a Law Enforcement Operation?

There are significant policy attractions to characterising AQAP as a criminal gang, and addressing the problem as a law enforcement problem, and not a military one - and not the least of which is that criminals are criminals, and that the US would deny AQAP the kudos of having a legitimate military struggle. Kevin Jon Heller of the University of Melbourne over on Opinio Juris thinks that what is going on against AQAP is "not an armed conflict at all".

It is certainly true that AQAP members and affiliates have committed acts that US and UK governments have classed as criminal, as the life sentence handed down to Roshonara Choudry in 2010 for attempting to kill the British MP Stephen Timms after reportedly being radicalised by Awlaki's video sermons, and the forthcoming trial of Umar Farouk Abdulmutallab demonstrate. But this glosses over a problem: in trying them as criminals tied to AQAP, the US and UK Governments are explicitly making the case that this is not a conflict, because if it was, these individuals would either be combatants, or the Governments involved would have to show why they were not - and why they should therefore be facing criminal trials. As combatants, let us be clear, they could still face war crimes trials for attempted murder - it's difficult to see either Northwest Airlines Flight 253 or Stephen Timms MP as legitimate targets.

In characterising these as criminal acts, and hence a law enforcement problem, the UK and US Governments raise a significant problem for the use of force, inasmuch as it significantly raises the bar for the use of force, as LOAC does not apply, leaving any use of force governed by IHRL rules. Though the right to life is clearly central to the exercise of the other rights, IHRL does not make the use of lethal force illegal in policing operations as some argue, but in all cases it will require the minimum use of force possible at all times, and that lethal force only be used in circumstances where there is no other method of preventing an immediate threat to life. In practical terms, this is given as the legal basis for killing suicide bombers (or suspected ones: this was the case in the case of Jean Charles de Menezes in London in 2005). Thus, though lethal force is allowed in some cases under IHRL, it demands a high evidential bar to be cleared of the imminence of the threat to life posed by those who are about to be killed.

What was the applicable law in the view of the US in this case?
We don't know yet, as this hasn't been released (and if it has please let me know). It should be, for transparency's sake. However, with that large caveat in place, the operationally easiest thing would be for the US to decide that the correct characterisation of the conflict is that it is an IAC, such that they could target Awlaki et al as combatants at any time or place - which is where Jack L. Goldsmith (a former assistant attorney general in the George W. Bush) comes in.

But if true, what is troubling is the notion that there are two characterisations of the conflict - one for the leadership as an IAC or a NIAC - and one for the footsoldiers like Abdulmutallab, both of which would work in our favour. This feels like a legal nonsense, and it needs to be cleared up.

(NB: Reapers don't just carry missiles - this one has 2 x GBU-12 Paveway II 500lb LGBs, too.)

So what?
At one level, many - indeed most westerners - may shrug their collective shoulders and conclude that Awlaki et al:

- These were bad guys;
- Thought that they were fighting a war and got killed by their opponents,
- Everyone who didn't agree with their worldview is safer (and probably better off)
- Besides, frankly these guys had it coming to them

This makes legal arguments at once irrelevant, and, to the extent that they constrain similar action in future, arguably dangerous. Therefore, there is not a particular problem in killing them, and we should be good with that. From a strictly realist / utlitarian viewpoint, there may be something to this position.

But as an international legal proposition, it is very dangerous, and for (at least) two reasons.

First, knowingly creating a legal black hole to get around the law is a flagrant violation of the central tenets of the rule of law, and is always fraught with the opportunities for abuse - see Guantanamo, CIA black sites - precisely because it makes the accountability of the State that the rule of law is based on virtually impossible.

Second, being able to vary the legal characterisation of a conflict depending on who you're targeting is nonsense; unless there is a clear difference between the types of conflict that Awlaki and Abdulmutallab were involved in, it is nonsensical to use radically different legal characterisations of the conflict in order to make the use of force easier, whilst retaining the criminal option when you want to use it.

For those who doubt either proposition, remember that international law is fundamentally about reciprocity. How would we feel about these propositions being applied to us by another power?

And for the record, I think the conflict with AQAP could be an IAC (though this raises interesting questions about POW status), could be a NIAC (though this raises difficulties about the relationship with Yemen, and whether AQAP actually controls any territory) or (my personal preference) it could be criminality below the level of a NIAC that requires police action - which raises all sorts of other questions over the legality of killing Awlaki et al.

But what it can't be is more than one at once.

* See Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of the First Additional Protocol of 1977 (AP I) for the definition of a combatant in an IAC. Article 50 of AP I defines a civilian, and Article 48 of AP I restates the rule that military authorities shall direct their operations only against military objectives.

** See Article 13(3) of the Second Additional Protocol to the Geneva Conventions 1977.

Anwar Al-Awlaki is killed

2011-09-30T10:31:00.002+01:00

(Anwar Al-Awlaki in happier times...)

At least according to the Guardian. It's interesting that the particular point made about Awlaki is his US citizenship, as if this exempted him from targeting as a leading member of Al Qaeda in the Arabian Penninsula (AQAP).

Interesting. I'll scribble some more when more is known.

J-70 Tram Engines

2011-09-29T14:29:00.000+01:00

(Toby, battler for justice)

Interlude time.

Growing up, it was always clear that Toby is an unusual christian name; indeed the market demonstrated this by the fact that there was never any mugs or other types of tat with Toby on them - it was all David, John, Bill, Oliver, etc etc. Hence, discovering Toby: The Tram Engine at an early age was simply wonderful - something with my name on it, and a quirky steam engine to boot - very important a six.

But in common with most of the rest of the the Reverend Awdry's creations in the Railway Series, (later known as "Thomas and Friends"), Toby in fact was based on a real series of strange steam tram engines produced by the Great Eastern Railway between 1903 and 1921 for service on the equally idiosyncratic Wisbech and Upwell Tramway, in rural Cambridgeshire, and were a more powerful version of an earlier Victorian design.

(68222 in the early 1950s)

Unkindly described by my sister as a "garden shed on wheels", the "Tobys" were replaced by diesel shunters in the early 1950s, and were all scrapped. (Sniff!) Nonetheless, this strange design has achieved a degree of immortality in the unlikely venue of a children's storybook character.

Minus the side plates, you can see how short the wheelbase was.

And under the "garden shed", it was just a conventional (if very small) steam engine.

"Targeted Killings" Legal Considerations: Part One Armed Conflict

2011-09-28T14:10:00.000+01:00

(MQ-9 Reaper: Radio controlled model airplanes were never this much fun in high school.)

“Targeted Killing” is a strange term. On one hand, it is atechnocratic phrase used by commentators to describe what isdescribed by the US Joint Special Operations Command (JSOC) in Professor Philip Alston's excellent essay on targeted killings as “kinetic counter-terrorist operations”* – evoking images of roboticplanes blowing up terrorists / bad guys / evil doers in precision ("clinical") strikes, or Special Forces kicking in doors at night and "taking down" the aforementioned terrorists / bad guys / evil doers (T/BG/EDs, I suppose).

On the other hand, “Targeted Killing”is an Orwellian obfuscation of language to camouflage the violent – and sometimesapparently random – deaths of large numbers in zones of conflict worldwide. Thus,Targeted Killings as a term can cover many things, ranging from the legitimatekilling of enemy combatants through assassination of opponents to the murder ofinnocent civilians.

Finally, “Targeted Killing” is curious as a grammatical description –to define some killings as “targeted” immediately implies a differentiation from others that are “untargeted”, and therefore, (presumably) indiscriminate. Indiscriminate attacks run the serious risk of killing or injuring those who are not legitimate targets - which is a war crime. As this blog has covered in the past, under the Law of Armed Conflict (LOAC) the legal use of force is always targeted - so the very notion of a "targeted" - as opposed to an "untargeted" killing is somewhat confusing.

It is also emotive; killing is not a warm fuzzy word, and therefore, arguably the whole term is pejorative - and in the process we run the risk of missing the legal point. Fundamentally, how do "Targeted Killings" differ from any other combatant deaths?

Let's look at the law.

(Professor Philip Alston, NYU; a good lawyer, who also writes beautifully.)

Conflict Nexus

The most important question is "what is the controlling law?" There are three possible answers:

- LOAC, when there is an International Armed Conflict (IAC), with the IAC rules;

- LOAC, when there is a non-International Armed Conflict (NIAC), with the NIAC rules;

- International Human Rights Law (IHRL), where there is no armed conflict (ie, any disturbances / riots are below the level for conflict), based on the 1948 UDHR subsequent international instruments (e.g. the ICCPR, CEDAW) and the regional charters (e.g. ECHR / ACHPR);

The key here is that under LOAC, "targeted killings" against combatants (IAC) or those taking an active part in hostilities (NIAC), are, subject to the proportionality and military advantage rules, legal. Under the peacetime policing rules of IHRL, the test for the use of lethal force is much tougher - is acceptable if it the only way to protect others from an immediate threat.

Fundamentally, the legal problem under LOAC comes down to combatant status - or not - and with it, identification. If you successfully target and kill a senior enemy combatant, then you may well gain a measurable military advantage - similarly, if you were able to target individuals with specific high-demand skills (e.g. Yahya "The Engineer" Ayyaash, killed by the Israelis in January 1996), then you'll gain a disproportionate military advantage.

But to achieve these disproportionate results, you need excellent intelligence, a precise understanding of the weapon's explosive effect - which as long ago as 2003 was detailed in the Seattle Times - and a judgement based on the likely number of civilian deaths (Collateral Damage) versus the military advantage to determine legality.

(T/BG/EDs? Pashtun civilians? Stag do? Hollywood extras? How can you tell?)

Role of Intelligence
This is where things become difficult, in that the information used to conduct the target identification is likely to be highly classified intelligence, which by its' nature is unlikely to be released - and if material is occasionally declassified or leaked, then the manner in which it was collected and analysed will remain unclear, making an external assessment of its veracity difficult. After all, intelligence agencies rightly want to protect their sources and methods, for fear of losing access to a source or method in future.

Within these rules the challenge - as Alston's article details - is to ensure that the legal requirements are met, and that there is an appropriate level of oversight; ironically (in light of the Nicaragua Case) Ronald Reagan's notion of "trust but verify" is ever more important. The problem, of course, is that if the intelligence files are not openly available, then it is difficult or impossible to assess the targeting decision. Moreover, as the enquiries and cynicism predictably coalesce around those strikes that have gone wrong, (either because of a technical, intelligence or judgement error), then the lack of the intelligence basis for the targeting decision makes accurate ex-post assessment of the decision-making virtually impossible: all you'll see is the human - and civilian - toll.

So "Targeted Killings" - if we must use the term - of combatants in IACs and NIACs are much less legally problematic than some would have us believe. But establishing oversight to ensure that the analytical framework behind these attacks is credible and produces legal strikes is critical - and that's where Professor Alston's essay is so useful.

I'll return to specifics later, along with the IHRL implications.

* Alston, p. 47

New ICRC Blog

2011-09-27T23:34:00.001+01:00

News just in - the ICRC has launched a new blog, "intercross", with a section on LOAC - it's here. Have a look - initial thoughts are that it will be very interesting.

More on Israeli Settlements

2011-09-25T07:30:00.000+01:00

(Map of the West Bank in June 2011 from B'tselem)

Further to the recent posts on the (il)legality of Israeli settlements in the occupied territories, (shown above in the latest map from B'tselem) and the threat of a US veto of a Palestinian UN membership application, I was interested in looking more closely at what current US policy is on the issue of Israeli settlements. Israel, remember, claims that settlements themselves are legal as the Fourth Geneva Convention doesn't apply in the Occupied Territories, though it accepts that there are some settlements that are illegal under Israeli domestic law, e.g. Migron. This analysis is wrong as a matter of international law, as the Geneva Conventions have customary - and therefore binding - status on all States, a fact underscored by UNSCR 827 in 1993, itself binding on all UN Members as it was adopted under Chapter VII.

In particular, I was curious about whether US policy was as lock-step behind the current Israeli Likud administration on the question of legality? It is certainly true that America's detractors and opponents would like the rest of the world to believe that the Obama Administration is in the pocket of the Likudniks, and that therefore the US was fundamentally flawed as an interlocutor in the Middle East.

(To their detractors, puppet and puppeteer. If true, which is which?)

Digging through the record, it's clear that this isn't the case, despite the visuals.

As long ago as 1979, the UN Security Council has held that Israeli settlements constructed on land captured by Israel in 1967 are illegal through the passage of Resolution 446 on 22 March 79. UNSCR 446 was adopted 12-0-3, with Norway, UK and USA abstaining - meaning that the US allowed passage.

On 18 Feb this year, the UNSC sat for its' 6484th meeting, and considered a draft UNSCR which was proposed by 100 states in the UNGA*. The draft UNSCR's Operational Paragraphs stated:

1. Reaffirms that the Israeli settlements established in the Palestinian Territory occupied since 1967, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of a just, lasting and comprehensive peace;

2. Reiterates its demand that Israel, the occupying Power, immediately and completely ceases all settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;

3. Calls upon both parties to act on the basis of international law and their previous agreements and obligations, including under the Roadmap, aimed, inter alia, at improving the situation on the ground, building confidence and creating the conditions necessary for promoting the peace process;

4. Calls upon all parties to continue, in the interest of the promotion of peace and security, with their negotiations on the final status issues in the Middle East peace process according to its agreed terms of reference and within the time frame specified by the Quartet in its statement of 21 September 2010;

5. Urges in this regard the intensification of international and regional diplomatic efforts to support and invigorate the peace process towards the achievement of a comprehensive, just and lasting peace in the Middle East;

6. Decides to remain seized of the matter.

For the UN, this is strong stuff; and it was duly defeated by a US veto, 14-1-0.

So far, so normal for the US's critics who assert that the US is simply a nebbish covering up for Israel's illegal excesses.

(The estimable US UN Ambassador Dr. Susan Rice).

After each Security Council vote, the UNSC members may choose to speak explaining what just happened. These speeches are known, (with a stunning lack of diplomatic originality) as "Explanation of Vote", or EOVs. Here's what Ambassador Rice had to say after the US vetoed the draft in the face of unanimity on the rest of the Security Council and against the wishes of 100 UN member states:

"The United States has been deeply committed to pursuing a comprehensive and lasting peace between Israel and the Palestinians. In that context, we have been focused on taking steps that advance the goal of two States living side by side in peace and security, rather than complicating that goal. That includes a commitment to work in good faith with all parties to underscore our opposition to continued settlements.

Our opposition to the resolution before this Council today should therefore not be misunderstood to mean we support settlement activity. On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity. For more than four decades Israeli settlement activity in territories occupied in 1967 has undermined Israel’s security and corroded hopes for peace and stability in the region. Continued settlement activity violates Israel’s international commitments, devastates trust between the parties and threatens the prospects for peace.

The United States and our fellow Council members are also in full agreement about the urgent need to resolve the conflict between the Israel and the Palestinians on the basis of the two-State solution and an agreement that establishes a viable, independent and contiguous State of Palestine once and for all. We have invested a tremendous amount of effort and resources in pursuit of that shared goal, and we will continue to do so. But the only way to reach that common goal is through direct negotiations between the parties, with the active and sustained support of the United State and the international community. It is the Israelis’ and Palestinians’ conflict, and even the best-intentioned outsiders cannot resolve it for them."

The language is direct, and strikingly similar to that used by President Obama in threatening a veto on the Palestinian application for UN membership: if nothing else, the US was being entirely consistent. It is also heartening to hear that the US "reject[s] in the strongest terms the legitimacy of continued Israeli settlement activity", by which I presume were are suppose to understand that the US considers them illegal under international law, though they don't actually want to say so.

What is missing, of course, is successful economic or political pressure from the US to force the Israelis to freeze the settlements as a prelude to negotiations. But that is a political, not a legal matter.

(*For the record, the co-sponsors of the draft Resolution were: Afghanistan, Algeria, Argentina, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, the Plurinational State of Bolivia, Botswana, Brunei Darussalam, Chile, Comoros, Costa Rica, Cuba, Cyprus, the Democratic People’s Republic of Korea, Djibouti, Ecuador, Egypt, Finland, Greece, Grenada, Guatemala, Guinea, Guyana, Iceland, Indonesia, Iraq, Ireland, Israel, Jordan, Kuwait, the Lao People’s Democratic Republic, Lesotho, Liechtenstein, Luxembourg, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Namibia, Nicaragua, Norway, Oman, Pakistan, Papua New Guinea, Peru, the Philippines, Qatar, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia, Slovenia, Somalia, the Sudan, Sweden, Switzerland, Tajikistan, Tunisia, Turkey, Turkmenistan, the United Arab Emirates, Uruguay, the Bolivarian Republic of Venezuela, Viet Nam, Yemen and Zimbabwe.)

Paperwork, paperwork

2011-09-24T11:57:00.000+01:00

(Here's one I prepared earlier.)

Here's PA President Abbas addressing the UN General Assembly, with his application in his hand. It's going to be an interesting few days.

Israeli Settlements are illegal. Points? Questions?

2011-09-24T01:11:00.000+01:00

(Israeli settlement of Migron*. Even the Israeli Supreme Court agrees this one is illegal.)

I've been asked a couple of times about whether or not the Israeli settlements built on territory occupied in the 1967 Six Day War are legal, and if not, why not - given that the Israeli Government distinguishes between legal and illegal settlements in the West Bank.

The Israeli Ministry of Foreign Affairs marshals an extensive argument on their website explaining why Article 49(6) of the Fourth Geneva Convention 1949 which forbids an occupying power from "deport[ing] or transfer[ing] parts of its own civilian population into the territory it occupies" doesn't apply in the West Bank, the Golan Heights (and formerly, Gaza). The Israeli MFA's claims that:

"The provisions of the Geneva Convention regarding forcedpopulation transfer to occupied sovereign territory cannot beviewed as prohibiting the voluntary return of individuals to thetowns and villages from which they, or their ancestors, had beenousted."

This is arguably true but irrelevant. It is interesting that even the Israeli MFA makes the case that ancestors - presumably back to biblical times - present a legal basis for the appropriation of land and the construction of settlements. In legal terms this is a nonsense, and in practical terms it is hopeless - it would appear to give Italians legitimate title to most of the Mediterranean world, for instance.

The Israeli MFA goes on:

"Nor does [Article 49] prohibit the movement of individuals to landwhich was not under the legitimate sovereignty of any state andwhich is not subject to private ownership. In this regard, Israelisettlements have been established only after an exhaustiveinvestigation process, under the supervision of the Supreme Courtof Israel, designed to ensure that no communities are establishedon private Arab land."

There are at least two problems with these assertions. First, the Israeli MFA in asserting that the territories it occupied in 1967 were "not under the legitimate sovereignty of any state" implies that it was terra nulius. Simply put, this isn't true: in 1967 the West Bank and East Jerusalem were either under the sovereignty of Jordan, or it was illegally occupied by Jordan with rights reverting to the previous legitimate sovereign. (I assume that in this case the previous legitimate sovereign was the UN as the League of Nations mandate was handed back by Britain, though I'd have to do some more work on this.) In any event, the West Bank and the other other occupied territories were not terra nulius - because if they had been, then in 1967 the UNSC would not have passed Resolution 242 calling for the withdrawal of Israeli forces from "territories occupied in the recent conflict".

Second, the record is clear that Israel does appropriate Arab land, and has used it for building settlements.

In any event, the UN Security Council made clear in 1967 that the Geneva Conventions applied to the occupied territories in Resolution 237, and in 1979 that the settlements are illegal in Resolution 446, OP1 of which reads that the Security Council

"Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East."

Indeed - and the situation has only deteriorated since then.

*Migron is significant as in a major victory for Peace Now, the Israeli Supreme Court ruled in August 2011 that Migron was illegal and demanded that the Israeli government remove it by April 2012, which is the first time this has happened in the West Bank.

Words have meanings. And Consequences.

2011-09-21T00:58:00.000+01:00

(UN General Assembly. Bring your own ~~seat~~ chair. Sit anywhere. Or something.)

Well, hasn't it been an interesting couple of days? If he's achieved nothing else, then PA President Mahmoud Abbas (Abu Mazen) has put the need for a two-state solution back at the centre of the international agenda for the first time in at least the last 12 months - indeed, with the Arab Spring, it's hard to say that even the Middle East has been focussed on Israeli - Palestinian negotiations in 2011.

I shan't bore you with lots of links to interesting stories: I assume that if you've bothered to read these blog posts, you're probably interested enough in the subject to read a range of views and therefore you hardly need me to drive the point home. And I must stress again that this is an international law blog, rather than a politics blog... which I appreciate may be a fine line to tread, but at base it looks at the legal arguments first, and if it is to make political commentary, to do so second.

So with that out of the way, I was shocked not by Texas Governor Rick Perry's "Likud right or wrong" speech in which Perry accused President Obama of "appeasement", or by Perry's apparent suggestion that that he wanted Jerusalem “united under Israeli rule” (in contravention to US policy and UNSCR 478 (1980)); Perry seems to be a loud-mouth dimwit, even if he is running for the US Presidency.

Altogether more shocking is by US House of Representatives Resolution H Res 112-394 introduced on 8 September by Illinois Republican Joe Walsh (below).

(Annexation? Sure, help yourselves!)

H Res 112-394 enjoys more than 30 co-sponsors, and resolves,

"That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations."

Supports annexation? Excuse me? And as an implict punshiment for the PA pressing for "unilateral recognition of Palestinian statehood at the United Nations"? Pardon? Really?! Really?!?

So let's look at the legal issues. All of this, it must be recalled is in territory captured by the Israeli Defence Force in the 1967 Six Day War, and subsequently occupied. Therefore, the controlling law remains the Fourth Geneva Convention (1949) (GCIV), which is binding on all states - including Israel.

Annexation

The UN Charter, in outlawing aggressive wars in Article 2(4), made the acquisition of territory through conquest illegal for the first time in human history. Since 1945, therefore, annexation has also been illegal.*

In Geneva Convention Law, GCIV Article 47 forbids the removal of the population's rights under the Geneva Conventions by "any annexation by the latter of the whole or part of the occupied territory", making annexation not just illegal under the UN Charter, but also making any attempt to implement this illegal policy a crime under Geneva Law, too.

GCIV Article 49 deals with expulsions, evacuations and population transfers in its six paragraphs. It is illegal to permanently move a populations out of their occupied territory, though there are specific rules about evacuation for protection, e.g. in the case of continuing military operations. These evacuations must be temporary, and abide by international safeguards.

(On a tangent, reading Article 49 can be slightly confusing, in that the first five deal with the protection of the population under occupation, and the sixth paragraph prohibits an occupying power from transferring their population into the conquered territory; it is a Art 49(6) that makes all Israeli settlements in the West Bank and the Golan Heights (and prior to 2005, Gaza) unambiguously illegal under international law.** This nearly led Art 49(6) to become its own article in GCIV, but in the drafting conference, it stayed where it is.)

Annexation as a collective punishment.

Any annexation of the West Bank would, on the basis of Israeli policy in the area of East Jerusalem that the Israeli Government claims to have annexed, (and which no-one else in the international community accepts, hence the reason that Embassies in Israel are in Tel Aviv, not Jerusalem), be deprived of significant civil and political rights. This amounts to a form of collective punishment, which GCIV Article 33 expressly prohibits, demanding that "No protected person may be punished for an offence he or she has not personally committed."

So has Joe Walsh incited war crimes?

Incite: to stir, encourage, or urge on; stimulate or prompt to action: to incite a crowd to riot (Courtesy of Dictionary.com)

It is clear that any Israeli annexation would be unambiguously illegal, and in (i) wrongly asserting that annexation is a "right" of the Israeli state, and (ii) to link this illegal action to an illegal collective punishment, it is arguable that Representative Walsh and his colleagues are indeed inciting such - illegal - action. The question is, would this amount to what the Geneva Convention would describe as "grave breaches"? I'm not sure, and will ask some experts.

However, if it does - and both ICTR and ICTY jurisprudence has cases on incitement - arguably Congressman Walsh and his con-sponsors should be subject to action by the US Government under its obligations laid out in Common Article I of the Geneva Conventions, which requires, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances."

Oops.

Perhaps someone may want to tell the Congressman....

* Only the Indian annexation of the Portugese colony of Goa being broadly recognised by the international community, and with the understanding that this was in effect decolonisation.

** In a tragic irony, the first paragraph of the Art 49(6) ICRC commentary explains the historical background, and why Art 49(6) was included in the first place:

"This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."

In other words, Art 49(6) was a direct repudiation of Hitler's policy of Lebensraum settling Germans and ethnic Germans across central and eastern Europe.

Palestinian UN Membership Application

2011-09-19T15:25:00.002+01:00

Update: Looks like PA President Mahmoud Abbas will file the paperwork on Friday, after speaking at the UN General Assembly. A fun week in store!

Palestine: the UN's 194th Member?

2011-09-18T14:58:00.000+01:00

(PA President Mahmoud Abbas announces his application for UN Membership.

NB: The 1967 Borders includes the Old City; this includes some of the stuff in my helpful visual aide.)

Well, looks like Palestinian Authority President Mahmoud Abbas has decided to go for full UN Membership next week. Back in March, Israeli Deputy Prime Minister Ehud Barak warned that international momentum to recognise a Palestinian State on the 1967 borders constituted a "diplomatic tsunami" - and it appears to be getting ready to break in the next fortnight.

There are two issues to deal with when considering applications for UN Membership - the UN's own membership criteria and the process of obtaining membership. Paradoxically, the process is probably more important (and bizarrely, more interesting) than the criteria - which, as will be seen, can and have been fudged.

(Meanwhile, on the East River...)

So what is the process? Initially, a prospective member applies to the Secretary-General (S-G), including an instrument of willingness to accept the obligations contained within the UN Charter. The S-G then passes this across to the UNSC under Article 4(2) of the UN charter which reads:

"4.2 The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council."

This double-action element requires the UNSC to approve and recommend membership to the UNGA, meaning that any application has to be approved by at least 9 Security Council Members, with no veto thrown by one or more of the Permanent Members. Two things are noteworthy. First, that the UNGA has never rejected a membership application recommended by the UNSC, and second, that an applicant does not become a member until the application has been approved by a two-thirds vote in the UNGA.

Admission as a political, not legal, process

As strange as it may seem to modern eyes where UN membership is assumed to be near universal - Taiwan, Palestine and Western Sahara being the obvious non-members - between 1946 and 1955 membership applications were completely constrained by the Cold War causing States to link applications together. The situation got so bad that in November 1947 the UN General Assembly asked the ICJ for an Advisory Opinion on Admission, which rejected the notion that an application could be rejected for reasons other than the criteria in Article 4(1). The UNGA went further in UNGA Resolution 197/III of December 8, 1948, in effect calling for the UNSC to give up the veto power on applications (a subject that the Security Council has given a stiff ignoring to since then).

During this period, only 9 of 31 membership applications were approved, and the Soviet Union casting 47 vetoes on membership applications in this period. (Recall, that the US didn't use the veto at all until 1972). Ironically, in light of the Obama Administration's statement that it will veto a Palestinian application for UN Membership, the 1948 US Senate Vandenburg Resolution - a key step on the road to establishing NATO - calls in Article 1 for applications to be exempt from the veto.

What criteria can apply?

Article 4(1) sets out the requirements for UN Membership. Prospective UN Members must:

(i) be a State;

(ii) be peace-loving;

(iii) accept the obligations of the Charter;

          (iv) be able to carry out these obligations; and
          (v) be willing to do so.

(i) Is Palestine a State - 1933 Montevideo Convention
So the first question is whether Palestine is a "State"? The classical view of Statehood is the 1933 Montevideo Convention on the Rights and Duties of States, which require:

          (i) a permanent population;
          (ii) a defined territory;
          (iii) government; and
          (iv) capacity to enter into relations with the other states.

There is an interesting debate about whether the Montevideo Criteria are still applicable or whether something more amorphous reflects the current position. However, let's apply Montevideo to Palestine. In their application for UN Membership, it is reported that the Palestinian Authority (PA) will be doing so on the basis of the border of June 4, 1967 - ie, the Gaza Strip, East Jerusalem, and the West Bank occupied by Israel in the 1967 Six Day War.

Within these boundaries, there is a permanent population, including over 500,000 Israeli settlers, whose presence is illegal under the Fourth Geneva Convention, there is a defined territory, the PA is a government of sorts - namely, it has limited powers over a delimited area - and its' writ does not run in Gaza - but is arguably a lot more effective than other UN member state governments - e.g. Somalia's Transitional Federal Government. Finally, the PA is clearly capable of entering into international relations - it has Embassies around the world, and has had UN Observer Status since 22 November 1974.

So even on the Montevideo Criteria, Palestine appears to be a State.

(Unlike Gaddafi's effort, a Green Book to revere: Justice Simma's brilliant Commentary on the UN Charter.)

(ii) Is Palestine "Peace-Loving"?
Of all of the arguments that those who oppose Palestinian UN Membership, this is superficially the most attractive - after all, hasn't there been a stream of terrorist attacks on Israel from Gaza and the West Bank? Certainly there have been some, and rocket attacks from Gaza against civilian targets inside Israel - and vice versa - should be unambiguously condemned. But as Prof. Konrad Ginther as the University of Graz notes in Simma's Commentary,

"With regard to the admission of the large number of new States resulting from decolonization, however, the criterion 'peace-loving State' was of no practical importance at all." (Ginther in Simma, Commentary, p. 182).

On this basis, the criteria is irrelevant, and we can move on. Ginther offers a more detailed explanation of the historical position:

"More frequently, an applicant State was judged 'peace-loving' or non-'peace-loving' by reference to its current international behaviour, such as non-compliance with UN Resolutions, interference with innocent passage in territorial waters, recourse to peaceful means for the settlement of disputes, and respect for the principle of non-intervention." (Ginther in Simma, Commentary, p. 182).

Given the effort that Israel is putting into defeating a Palestinian UN membership application, it is an interesting exercise to consider whether on these criteria Israel itself could pass the requirement of being a 'peace-loving' nation.

International good citizenship: (iii) accept the obligations of the Charter / (iv) be able to carry out these obligations / (v) be willing to do so.

It is pretty clear that the PA would comply with these five requirements - at least as well as the least effective of the UN's existing members. So I would argue that none would preclude a Palestinian membership application.

(President Obama speaking at Cairo University in 2009, setting out the his Administration's new approach to the Islamic World in general and the Middle East Peace Process in particular. Ah.)

Avoiding the Trainwreck
Given their public statements, it is essentially inconceivable that the Obama Administration could now back down and vote in favour of Palestinian UN membership - even though in my personal view this is the correct legal and policy choice; to do so would look ridiculous and would open the Obama Administration up to further domestic political attack that it is insufficiently supportive of Israel.*

But a veto - especially a solo veto - is far from a zero-cost option for the US. It is clear that a US veto will isolate the US internationally and in particular in the Arab and Islamic worlds, opening Obama in particular up to a reasonable charge of double standards between his support for pro-democratic forces in the Arab Spring, and the continued Israeli occupation of East Jerusalem, the West Bank and blockade of Gaza.

There is another option; the UNSC can refer an application to a Committee on Admission - a process used only once since 1952 in the case of Bangladesh in 1971/72. This provides a route for avoiding the negative fallout for the US and the region occasioned by a US veto, and buys a limited amount of time - probably up to 12 months - for real negotiations to get underway. The NY Times editorial of September 12th suggests that the Quartet (UN, US, EU, Russia) place a map on the table and essentially force both sides to negotiate the land-swaps, water rights and right of return that are at the centre of the final status agreements. Given the circumstances, therefore, a Committee on Admission and a big-step up in the diplomatic pressure on both sides to achieve a settlement is probably the best of a number of bad options.

Conclusion

Ultimately, the niceties of international law are irrelevant if the Obama Administration has already decided to veto any resolution to allow Palestinian UN Membership. But given the above, if the US wants to veto, then they should be forced to do so alone, and the EU, and in particular Britain and France as fellow P5 members should not offer them any cover. If Palestine qualifies for Membership - and for the reasons outlined above, legally I think that it does - then let the UNSCR fail by 14-1-0 (United States).

*In fact, the Obama May 2011 speech was fair and balanced, and simply reflected the position that everyone else is working to - a two-state solution with agreed land swaps, and final status issues to be negotiated.

Another nail in the coffin

2011-08-29T22:26:00.000+01:00

(See you in court.)

.. of Blair and Bush pretending that they ever actually intended to follow the international law when it came to Iraq. From tomorrow's Guardian, with the wonderful Philippe Sands prominent again.

I'll write more soon, I promise - been rather swamped with work.

Happy Birthday, America!

2011-07-04T13:02:00.000+01:00

Happy July 4th to all!

But what does US Independence Day have to tell us about conceptions of Statehood? (Strange question to interrupt hot dogs, ice cream and watermelon with, I appreciate, but this is an international law blog.) Oddly, this is a more interesting question than it may at first seem.

So why July 4th? On July 2nd, 1776, the Second Continental Congress meeting in Philadelphia voted to approve a Resolution of Independence drafted by Richard Henry Lee of Virginia, and was explained in a polemic drafted by John Adams of Massachusetts, Roger Sherman of Connecticut, Robert Livingston of New York, Benjamin Franklin of Pennsylvania, and Thomas Jefferson of Virginia - the Committee of Five. Signed by John Hancock as President of the Second Continental Congress, this was approved on July 4th, and released on July 5th, and is known as the Dunlap Broadside after the printer John Dunlap and the size of paper he used - though the double entendre of a legal broadside is accurate, too.

(A different kind of broadside - USS Constitution defeats HMS Guerriere in 1812)

So what was the effect of the Declaration of Independence? At one level, it presumably demonstrated that the Continental Congress was serious in its intent to lead a revolution against British rule; but this was already underway - the Battles of Lexington and Concord had occurred in 1775. Moreover, the Revolutionary War would go on (and on, and on) until the final surrender of Cornwallis's army at Yorktown in October 1781 (though this marked what today may be called "the end of major combat operations"), with de jure independence being achieved in the 1783 Treaty of Paris, with ratification instruments exchanged in Paris on May 12, 1784.

So, July 4th has rivals as "Independence Day". It could be the de facto independence after Cornwallis's defeat on October 19th, or the de jure independence on May 12th.

(Charles Cornwallis, a loser despite his immaculate tailoring)

Why does this matter?

At one level, it clearly doesn't: everyone knows that the 4th of July is US Independence Day, with parades, fireworks and family time: and a national holiday certainly isn't going to get moved to May 12th because of this blog post. But at another, it suggests that the US celebrates its' own Statehood from the Declarations of Independence - which presumably means that if a State were to meet the 1933 Montevideo Convention Criteria which enshrines the Declarative Theory's four criteria for statehood into international law, and were to declare independence, then the US would grant recognition.

For example, this could mean that Somaliland and Palestine would be recognised by the US without further ado, and that Taiwan need only to formally declare independence to achieve US recognition. Clearly this isn't going to happen, not least as it would be far too disruptive. But it's interesting to ponder none the less.

So, Happy 4th everyone!

Governance....

2011-06-29T16:10:00.000+01:00

(Right, Somalia.... why didn't I think of that?)

Ok, so the video is amusing. And in fact, the beaches of Somalia can be amazingly beautiful, as we'll see later on. But the real challenge of Governance still remains - and indeed, the ultimate legacy of Regan / Thatcherism may be that the notion that Government is problem, not the solution (and, inter alia, taxes are bad / evil).

In my view, this is deeply unhelpful, especially in states which are facing crises. And there's plenty of them to go around. Consider the debt crises in Greece and Ireland - or indeed the widespread public sector strikes in the UK tomorrow, let alone the US Congress playing chicken with the debt ceiling. And this is before we look at places with "imperfect" governments - anywhere from Afghanistan, where the Central Bank Governor fled in fear of his life after investigating the looting of Kabul Bank, to Angola, where a resource boom has created one of the world's most unequal societies.

Governance - fundamentally, the competence of the government combined with the consent of the governed, is critical to long term economic growth and social stability. Massively unequal countries tend to have revolutions, as do kleptocratic ones - just ask Tunisians or Yemenis. But the solution is not less government or more government: it is better governance, fuelled by representative, responsive institutions, in which corruption in particular is not tolerated.

(One of Somalia's beautiful beaches. Attracts surfers and tank-spotters.)

Can we target and kill Colonel Gaddafi?

2011-06-11T01:37:00.001+01:00

Foreign Policy Magazine asks whether it is legal to kill Colonel Gaddafi?

Well, it's blissfully straightforward.

(Sorry, wrong kind of "Yes!". Anyway, it's still "Yes.")

Umm, Yes. (Or at least "Maybe", depending on proportionality and military advantage.)

Colonel Gaddafi is both the de facto Head of State of Libya, and the de facto Commander-in-Chief of the Libyan armed forces. As such, he's a legitimate military target within the meaning of AP I, and within the remit of UNSCR 1973. Therefore, if the killing of Colonel Gaddafi was proportionate to the military advantage, and was proportionate to the risk posed to non-combatants, then yes, it will be legal.