It's Morning in Arabia

 (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!

Winning the Revolution

(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.

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

 

(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.

Gareth Evans on R2P: Is Syria next?

(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. 

Palestine: the UN's 194th Member?

(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.

Governance....

(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?

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.

Can we supply arms to the Libyan rebels?

(FGM-148 Javelin: designed to be squaddie-proof, and it is therefore probably rebel-proof.)

So the back-and-forth along the Libyan coast is continuing, and though it is encouraging that the long-serving Libyan Foreign Minister Mousa Kousa appears to have defected, it doesn't yet feel like either side is going to have a gentle stroll to victory. 

Which is why the American and British Governments are now openly discussing options for supplying the Libyan rebels despite the arms embargo. Is this legal? Secretary of State Clinton and the UK Government says yes it is. Philippe Sands QC says no it isn't. Despite my nuanced disagreement with Prof. Sands earlier this week, I'm instinctively behind him rather than the Governments.

Who's right?

 (Utterly gratuitous shot of UN Headquarters, New York. Cool though.)

The first UN Security Council Resolution is UNSCR 1970 (2011) of Feb 26, 2011. UNSCR 1970 establishes the arms embargo in Operative Paragraphs 9 - 14. Paragraph 9 states:

"9. Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories"

It goes on to provide some exceptions to the embargo.

This raises two questions. 

First, when UNSCR 1970 talks about banning weapons shipments to the "Libyan Arab Jamahiriya", does this mean Libya as a whole or just the Gaddafi regime? 

Second, does UNSCR 1973 (2011) generally supersede UNSCR 1970 (2011), and specifically, does the "all means necessary" language in OP4 of UNSCR 1973 mean that the arms embargo on the rebels is moot in any event? 

On the question of whether the phrase "Libyan Arab Jamahiriya" covers both sides in the conflict, I think that for two reasons it must. First, "Libyan Arab Jamahiriya" is the official name for Libya, and not that of the Gaddafi Government. More importantly, arms embargoes are typically against both sides - see, for example, the Cote d'Ivoire arms embargo in paragraph 16(c) of UNSCR 1933 (2010) - to avoid overtly taking sides. So on the first count, I think that the arms embargo must apply to both rebels and Gaddafi.  

(UNSCR 1441 adopted unanimously, Nov 8, 2002. Implied repeal meant a bad day for the hawks.)

On the second more substantive question, the doctrine of implied repeal does apply to UNSCRs: if the Security Council grants and then limits or rescinds powers - e.g. for the use of force - then States cannot rely on the earlier Resolution to do what they want. Indeed, just ask Messers Blair and Bush - this was the fundamental problem with their attempt to use UNSCRs from 1990 to legitimate their illegal 2003 attack on Iraq.

But even implied repeal only gets you so far: despite the wide latitude of UNSCR 1973 accorded to intervening States, OP4 states:

"to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya"

So it directly references the arms embargo - reading, in effect;

"to take all necessary measures, notwithstanding the arms embargo, to protect civilians and civilian populated areas under threat of attack in Libya." 

This could be read as rendering the arms embargo moot if the "necessary measures" to protect civilians included the supply of arms to the rebels - or indeed, if the rebels turned nasty, to the Gaddafi forces. 

But I'm not sure. I'm yet to read the Explanation of Votes (EOVs) that accompanied UNSCR 1973 which will provide the critical colour on whether or not the Member States actually thought that they'd granted these powers to the allied coalition - the shape of which was of course unknown. 

I don't know what the definitive legal answer is: it's possible to make a case either way. 

But by far the best approach would be for the allied powers to return to the Security Council to formally vote on raising the arms embargo on the Libyan rebels. The question of whether this would survive a Russian or Chinese veto is separate, but it would in my view be a mistake to press the outer boundaries of the existing resolution out of fear of a veto by Russia or China. Faced with a choice of making them publicly defend casting a veto in favour of Gaddafi's forces, or running around like naughty school boys who know that they're stretching the rules to breaking point, let's go back to the UN and do it properly.

Legality of pre-emption is back....

(Prof. Philippe Sands QC: brilliant, but in this case, I respectfully (and uncomfortably) disagree. A bit.)

Legality of pre-emption is back - and as usual, no-one can agree. The Guardian's coverage is pretty sensible, and I'll come to the substance of the argument over whether allied air forces in Libya can continue to attack Gadaffi's ground forces within the terms of UNSCR 1973 in a minute.

But first can we just cherish the fact that we're having this debate at all? The notion that abstruse debates about the legality of the use of force are now taking place in the press at all is wonderful, and a testament to the work of people like Professor Sands, Professor Francoise Hampson, Professor Elizabeth Wilmshurst CMG, and Professor Charles Garraway in making the role of the law in the use of force so politically important. Thank-you all - it is a wonderful step forward.

Right: Pre-Emption.

There is a long-running argument amongst international lawyers over whether or not you can act pre-emptively in self-defence. In practice, most of the argument over pre-emptive action (more properly, "anticipatory self-defence") comes down to a ferocious debate over which side of a fence are you on: does a State have to absorb the enemy's first strike, or can it blunt it by attacking a State that is in the final stages of launching an attack?

(1967 Pre-emption, Israeli style: Egyptian AF transports destroyed.)

The classic case is the 1967 Six Day War, in which the Israeli Defence Force mounted a pre-emptive attack on Egypt, believing that Egyptian President Nasser having evicted the UN Emergency Force from Sinai and having closed the Straits of Tiran was about to invade Israel. This led to decisive Israeli victories against Egypt, Syria and Jordan, with Israel occupying the Sinai Peninsula, East Jerusalem and the West Bank, and the Golan Heights. Militarily, it was magnificent performance, but legally it was a shambles: the evidence today is that Nasser didn't intend to attack at all, but was posturing for domestic support.

Oops.

Which is why I put myself in the camp that says you have to in effect ride the first punch before counter-attacking (and this could just be the first artillery rounds crossing the border). And those lawyers who favour the right to pre-empt are almost exclusively in the camp that recognises the danger that a broad power of pre-emption would grant - namely, that the greater the margin of appreciation given to those using their right to "anticipatory self defence", the more likely you are to provide a charter for the unbridled use of force.

(Oh dear.)

This is where the Bush Administration's US National Security Strategy of 2002 and 2006 went so far off the rails: it articulated a doctrine of "pre-emptive warfare". At one level, this takes anticipatory self-defence to the logical conclusion: if something could become a threat, it'll be quicker and easier to deal with it now, rather than later.

This is probably true, but it somewhat misses the point that the use of force in such a situation was rendered completely illegal by the passage of Art 2(4) of the UN Charter. In other words, the US National Security Strategies of 2002 and 2006 were in fact premised on the Bush Administration's willingness to explicitly break international law.

 (One opposed to more billboards.)

Libyan So What?

Prof. Sands' point that pre-emption is a slippery slope is absolutely correct. But I take issue with this quote in the Guardian:

"It is difficult in international law to argue for a pre-emptive use of force to protect civilians from a possible threat that might arise in the future. We don't know if there is evidence to show that a failure to attack Ghadaffi's forces would lead to a regrouping that would lead in turn to attacks on civilians."

I would suggest that to the contrary there is 42 years' worth of evidence that Gaddafi's forces have led a more (and generally rather less than) benign reign of terror over his country. This to me leads me to an expansive understanding of the powers conferred to the coalition of the willing by the UN, and with it, the conclusion that Gaddafi forces are being used to oppress civilians, and therefore that attacking them at a time and place of the allied air forces' choosing probably meets the requirements of UNSCR 1973 OP4. As such, my disagreement with Prof. Sands is about nuance, not the law specifically.

But Prof. Sands broader point must be right: if not yet, then pretty soon the western air forces are going to be testing the outer boundaries of UNSCR 1973. Accepting as I do, Malcolm Shaw QC's point that these boundaries are elastic, they are not infinitely so. So whilst hoping that the Gaddafi regime collapses before we're faced with the problem of exceeding the powers granted, the correct thing if rebel ground forces cannot overthrow the Gaddafi regime alone, is to return to the UN Security Council for increased powers if that is required. I'll look at how and what these powers would look like in a future post.

Libyan Reflections

(Top tip to revolutionaries: make sure your signs are in english for television...)

Well, in Libya at least, it all seems to be going swimmingly: my concerns that air support alone may not be enough to break Gaddafi's forces are yet to be confirmed - and in retaking the oil towns of Brega, Ras Lanuf and Ben Jawad, they've opened the road to Sirte, Gaddafi's home town.

All good news. And though it would be easy to point out that Sirte could mark the point at which it begins to get harder, the point is that thus far, the strategy is working, especially as there are reports that Gaddafi forces are breaking and running from the fight under fire from allied airpower.

But the opposite of optimism may not be pessimism, but a dose of realism. I sincerely hope that the Sirte garrison realise what is good for them, and give it up gracefully - but then that hasn't been the case so far for the Gaddafi forces. As his home town, if Sirte falls then suggestions that it's game over for Gaddafi may prove accurate. But let's hope it goes well - and have a solid plan for what happens if it doesn't - within the rules of UNSCR 1973. 

On a different Libyan issue, I saw the photo below posted on an aviation website earlier today:

(Are you sitting comfortably? I'd want it bolted to the pickup, but that's 'ealth 'n' safety nonsense, mate!)

According to the poster, it shows Gaddafi forces deploying a twin pedastal mounted launcher for the Russian 9K338 Igla-S (SA-24 GRINCH) infra-red guided surface to air missile system. I'm not a great MANPADS spotter (too many look too similar!) but it looks right to me. Which, given that Igla-S is the newest and longest-legged former Russian, underscores that the crews over Libya are not operating in a no-threat bubble. Good on 'em, and may they continue to be safe / lucky.

Army + Air Force = Victory

 

(P-47 Thunderbolt, France, 1944 - the beginning of Air-Land Integration)

I think - and I'm sure that someone will correct me - that it was Gen. Omar Bradley who is credited with coining the phrase "Army plus Air Force* equals Victory" following the breakout from Normandy and the critical battle of Falaise Gap. This became the basis of western land doctrine at all points since then, with increasing success coming from a combination of improved communications and situational awareness, together with much more accurate air-to-ground weaponry. Thus doctrine evolved through the post-Vietnam US "Air Land Battle" doctrine - rolled out to general astonishment in Operation DESERT STORM - through to today's Air Land Integration (ALI) in Afghanistan.

But whilst this is working increasingly well in Afghanistan, it is a real challenge in Libya: fundamentally, can the anti-Gaddafi forces who are poorly equipped, and though unquestionably brave, poorly trained defeat the Libyan Army simply because of allied air power?

It's an open question. The key in ALI is integration - making sure that what you're targeting is not only the opposition, but that the targets you are hitting are being hit in the most efficient order to maximise the impact on the ground. This may mean therefore that you're hitting the tanks that you can see ahead of you on the battlefield - a tactical imperative - but that the most effective could be an attack on supply nodes, particularly on fuel, ammunition - what Colin Powell referred to in his "armchair generals worry about strategy, real generals worry about logistics" epithet in Gulf War I. It was also the basis for the 1944 "Transport Plan" in which the USAAF / RAF heavy bombers were diverted to resupply nodes in France, in order to support the ground troops by starving the German forces of supplies.

(The brilliant horseshoe. When effective, the UNSC remains our best hope for international peace and security.)

This demands a level of abstraction from the target that is harder to square with UNSCR 1973. Harder, but not impossible - OP 4 states that the mission is "to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya" - in other words, if you can expansively interpret "threat" then a broad scale targeting plan becomes possible.

Ultimately, this broader approach is probably what will be needed if we are to avoid either stalemate in Libya, or worse, a Gaddafi victory. My hunch - and it's no more than this - is that if we can demonstrate to the line Gaddafi army units that they can defect to the rebels and live, or get destroyed in detail by allied air power, then we're several steps forward.

*Yes, I know that in 1944, the US Air Force was still part of the US Army as the US Army Air Corps.

UK publishes Libya legal advice (sort of)

(Elizabeth Wilmshurst CMG addressing the Iraq Enquiry. Thank-you for everything.)

Appearing at the Iraq Enquiry last year, former UK Foreign Office Deputy Legal Adviser Elizabeth Wilmshurst (now Head of the Chatham House International Law Programme) - and the only person to resign over the illegality of the 2003 Iraq invasion - described the 2003 legal and policy process as  ... lamentable. There should have been greater transparency within government about the evolving legal advice" .  

Quite right too. 

So it was with real interest that I saw a note from Nick Clegg to LibDem party members this morning on the Libyan situation which includes this:

"Colonel Gaddafi’s treatment of his own people has been brutal, savage and wholly unacceptable. We have worked with Libya’s regional neighbours, especially the Arab League, and countries across the globe, to secure a resolution in UN Security Council. This resolution will allow us to act lawfully  in deploying our forces to up-hold a ‘no-fly zone’ in Libya.

The Prime Minister gave a statement yesterday, which you can read here. And on Monday we will have a full debate in the House of Commons, followed by a vote. In addition we will be publishing a summary of the legal advice of the Attorney-General. 

That is the right approach. This is a coalition government that will act decisively to protect innocent lives and uphold universal human rights. But one which will do so working with, not against, international law and the international community."

Shortly, therefore, we should get to read a summary of Sir Daniel Bethlehem QC's thoughts. Great, I look forward to it. 

Even better, Nick, you could publish the whole thing, and not just the summary.

   
Update: Here's the UK legal advice. Very sensible.

Pearl Roundabout - A metaphor for Bahrain?

Prior to the non-intervention GCC intervention, Pearl Roundabout in Manama, Bahrain, used to look like this:

Perhaps dull, but it became a focal point for the Bahrain democracy movement. Which is why it now looks like this:

Shameful for the Bahraini Government: it is clearly time for dialogue and compromise, not repression.

The surprising Mr. Hague

(The surprisingly radical Mr. Hague. Good.)

It’s tempting (and inevitably risky) to give into hyperbole when commentating on current international events – let alone on the concomitant international legal developments: this particular road to perdition is long, wide and well trodden. But in looking at yesterday’s UN Security Council Resolution 1973 (UNSCR 1973 (2011)), I feel a little hyperbole may for once be justified. In fact, there’s every chance that the world changed more than a little bit for the better with the passage of UNSCR 1973.

(Hopefully that’s enough hyperbole for everyone.)

Some background. 

In the words of an American lawyer friend of mine, international law simply doesn’t exist. “Where does it come from? Who enforces it?”, she asks.  Despite her cynicism, International law has several sources. First and foremost, it is created by Treaties – in other words obligations freely assumed by States – by decisions of international judicial bodies, by the UN Security Council operating as a legislature by passing binding Security Council Resolutions, arguably by UN GA Resolutions – e.g. the famous 1950 ‘Uniting for Peace Resolution’, and occasionally through eminent legal scholarship. But the most interesting route of international legal development is through the developments of customary international law.

Of these, customary international law is both the most interesting and most difficult because it is based on State Practice – and as it develops, it becomes binding on all States whether they’ve explicitly adopted it or not if it is accepted by enough States. (This is how the Universal Declaration of Human Rights – widely accepted as customary international law –applies to Saudi Arabia which explicitly rejected the UDHR in 1948.) Custom is challenging because by its nature it is continuously evolving, and because it can bind States without their consent.

The crucial developmental nexus for customary international law occurs when a State acts in a certain manner because it believes that it is legally obliged to do so even though this legal obligation doesn’t exist in Treaty Law, a UNSCR, or an international judgement. This is known as opino juris. And it is in this that the Libyan crisis has been so important in humanitarian intervention, especially in the developing Responsibility to Protect (R2P) doctrine.

British Foreign Secretary William Hague’s commentary to the UK Parliament’s Foreign Affairs Select Committee (FASC) earlier this week was fascinating. Hague explained that his legal advice allowed for a humanitarian exception to Art 2(4) and Art 2(7) in cases of systematic and sustained human rights abuses without explicit authorisation from the UN Security Council. 

 (Sir Daniel Bethlemhem QC. Thank-you very much.)

I’ve don’t recall this argument being advanced by any major power since R2P was outlined in the Conclusions to the 2005 UN World Summit. This is a major step forward – and I salute Sir Daniel Bethlehem QC, the UK Foreign Office Legal Advisor and his team, for taking this courageous but legally accurate and responsible position. Better, this position seems to be shared with France, and (extrapolating wildly) I suspect that this Anglo-Franco position that a further UNSCR was not required would have had a salutary effect on the Council as a whole - and Russia and China in particular. Though both abstained, neither had an interest in allowing R2P outside of the Council's auspices to get too far out of hand (lest it be used against their interests). The result has been that the UN Security Council has mandated the extraordinarily intrusive UNSCR 1973.

UNSCR 1973 is a remarkable document. It starts by defenestrating the legitimacy of the Gaddafi regime in Operative Paragraph 2 (OP2) noting the Security Council:

“Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people”

Other than calls for the end of apartheid in South Africa and denunciation of Ian Smith’s rebel regime in Rhodesia from the 1960s onwards, this is remarkably un-UN language: it explicitly states that a UN Member Sate Government (which, remember, was until recently on the UN Human Rights Council in a grotesque parody of that body’s stated mission) is not responding to the Libyan people’s legitimate demands.

Given that the UN’s position on non-intervention in the affairs of Sovereign States is enshrined in Art 2(7) and one that has been a shibboleth for oppressive regimes worldwide, this is quite remarkable. I’d like to think that the Burmese and Zimbabwean UN Missions understood the implications for their own authoritarian regimes, and wrote telegrams to explain this new and (potentially uncomfortable) point for them. 

OP4 is the meat of UNSCR 1973, authorising

“… Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General …”

This reflects the bias in the 2005 R2P language of the desirability of a leading role for the responsible regional grouping – in the case of Libya, both the Arab League and the Organisation of the Islamic Conference have endorsed a No Fly Zone (NFZ).  But crucially, UNSCR 1973 goes much further authorising Member States:

“… to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory …”

This is not an NFZ, which I argued last week would be a reasonably pointless gesture, as it could see allied aircraft pointlessly burning holes in the sky, impotently watching Gaddafi’s forces’ massacre of the opposition. (Which, after all, is roughly what the good Colonel and his son Saif al-Islam al-Gaddafi* have promised to do.)

Instead, UNSCR 1973 explicitly foresees the use of airpower and naval gunfire to protect civilians wherever they are in Libya. Taken at face value, this implies support to the Libyan rebels in attacking and defeating Gaddafi’s forces wherever they are in Libya, and with it the Gaddafi regime. 

 (Look, all I wanted to do was order a pizza. Is that too much to ask?)

Indeed, a narrow black-letter reading could even be used to justify limited foreign ground troops, provided that any foreign ground troops were not a “foreign occupation force of any form”. In other words, theoretically at least, the legality of deploying ground troops is about the intention and duration of their deployment, rather than an absolute bar against foreign troops at all. And this flexibility could be very useful, by, for example facilitating the deployment of liaison staff to the anti-Gaddafi forces – or even the deployment of Forward Air Controllers** to coordinate strike operations. 

In other words UNSCR 1973 is a massive step forward for R2P, giving a coalition of the willing in concert with regional groupings broad authority to protect civilians and to attack a repressive regime to do so. It should also leave the world’s remaining repressive autocracies with another early incentive to commence dialogue with whatever civil society groups they’ve failed to stamp out. One suspects that UNSCR 1973 is one precedent that they’ll be keen to forget in a hurry. Somehow I rather doubt that UNSCR 1973  will slide into obscurity so soon.

(Another F3 shot. Good!)

What is needed now is for the immediate implementation of UNSCR 1973 to save Benghazi and Tobruk, and then roll back the Gaddafi regime’s power. I only wish I was still involved*** to be able to play a small role in implementing one of the greatest humanitarian interventions in the postwar period – done successfully this will in time be seen in the same bracket as Kosovo, DR Kampuchea and East Pakistan.

And unlike these three, it will be explicitly legal.

*As an LSE graduate, I do hope that the School can find a route to strip Saif al-Islam of his LSE PhD. If he cheated, as is alleged, then so much the better.

** Or Tactical Air Control Parties (TACP) or Joint Terminal Air Controllers (JTACs) or whatever the most recent Newspeak is for Forward Air Controllers.

*** As the sign outside 111(F) Sqn Hardened Aircraft Shelters at RAF Leuchars said words to this effect (for the next few weeks) “This Squadron is held at very high readiness to project fighter power worldwide. Are you ready?” Yes! F3s from Luqa, Malta fighting for Libyan liberty would be a fitting finale for the flick-knife of death. Salve, F3.

When is intervention not Intervention?

 (If invited, this is not the intervention force you're looking for.)

Regular readers of this blog* will know that I revere the UN Charter. And "revere" is not too strong a word, as international law has gained some of the status of a secular religion; indeed, like most religions the legal fraternity has its fair share of fundamentalists. But to stretch the biblical metaphor to breaking point, the UN Charter reflects its convoluted negotiation process, and like The Bible, the Charter has lots of internal tensions / contradictions. 

 (Blue book fundamentalism starts here)

The interplay between the Charter's Preamble on the Human Rights and Article 2(7)  on non-interference in the internal affairs of sovereign States illustrates these tensions perfectly. The Preamble talks of

"reaffirm[ing] faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women"

and Article 2(7) says in part:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State … but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

There is clearly tension – when does protection of human rights trump non-intervention? If so, when and under what circumstances, and with what protections?

So how does this work in the real world?

 Pearl Square, Manama
(Note to editors: This has not been facilitated by a foreign non-intervening intervention.)

Bahrain

On Monday, 1000 Saudi soldiers togetherwith 150 armoured personnel carriers and 500 UAE policemen arrived in Bahrain, at the request of the Bahraini Government, as that Government believes it requires reinforcement to quell the pro-democracy movement that has blossomed in the "Arab spring". Combined with yesterday's declaration of a three-month State of Emergency, summarily suspending Bahrain’s human rights protections, Bahrain’s Government is effectively suppressing dissent with the force of foreign arms.

However, as this is at the request of the Government, the Government argues that this isn't intervention - instead it is (presumably) collective self-defence against external subversion. Interestingly, this is the same argument used by the Government of Republic of South Vietnam to legitimate the US-led coalition in what became the Vietnam War. As it isn't intervention, there is allegedly no violation of Article 2(7).

Libya

As you look at a map of the Middle East, move a few countries to the left on the other side of Saudi Arabia and Egypt, and in Libya, Muamar Gaddafi is testing the other end of Article 2(7) by killing large numbers of Libyan civilians.

(The rather wonderful green book from the Very Important Book Box - VIBB)

So how much latitude should there be for Gaddafi to kill his own civilians? In the rather wonderful “Charter of the United Nations: A Commentary” edited by Bruno Simma (now Justice Simma of the International Court of Justice, ICJ), the stated law comes from the famous dictum in the Nicaragua Case from 1986:

“In view of the generally accepted formulations, the principle [of non-interference] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters on which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural systems and the formulation of foreign policy.”**

This is not very helpful – an intervention’s not allowed if it’s not allowed. But it is if it is. Hmm. Fortunately, in 1923, the ICJ’s predecessor the Permanent Court of International Justice defined the distinction in Nationality Decrees in Tunis and Morocco , noting to the effect that matters that are solely within the domestic jurisdiction or a State are such “matters which are not, in principle, regulated by international law… with respect to which States, therefore remained sole judge”***

Sounds sensible.

So if the controlling law is your international obligations, then Art 2(7) – the modern repository of the ancient law of non-intervention – ceases to cover Governments that are violating their international obligations. Specifically, this means that genocide – due to the 1948 Genocide Convention – and crimes against humanity**** – due to customary international law – cannot be wrapped in a cloak of Art 2(7) impunity. Indeed, this has been the case since the 1960s when aparthied South Africa consistently lost the argument that Art 2(7) meant that the UN has no locus to criticise the apartheid system.

(Victory, for some. Presumably a demonstration in favour of more billboards.)

This means that Gadaffi et al in Libya are not covered by Art 2(7). (Nor are the autocrats in Burma / Myanmar.)

But Bahrain? Democracy – pace Teson – is not protected by an international Treaty, so it is harder to argue that autocrats can’t phone a friend and borrow some troops to resist demands for the autocracy’s end. So the beach island holiday for the Saudi troops is probably legal, as long as they don’t actually engage in violence against Bahrain’s citizens. At this point, however, it would lose this legitimacy.

I realise that this is a slightly depressing result: it would be much more compelling to conclude that these are all things that need to be protected and that At 2(7) is outdated State-centric nonsense. But at least concluding that Art 2(7) is not a torturer’s charter is a start, and refining the concepts of R2P going forward will build upon it.

* There are at least some. And you know who you are.

** Nicaragua, ICJ Reports (1986), pp. 14, 107 para. 205.

*** PCIJ, Series B No. 4 (Feb 7, 1923), p. 24, in Simma  p. 157.

**** For these purposes, crimes against humanity are the same as war crimes committed against your own people.