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

 

(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.

"Canada, Arrest Bush!"

 

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

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 under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 

7(2) These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to 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...